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314 


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The  Treaty  of  Amity,  Commerce,  and 

Navigation  between  Great  Britain 

and  the  United  States 


THE  JAMES  BRYCE  HISTORICAL  PRIZE  ESSAY 
FOR   1906 


BY 

ROBERT  R.   RANKIN 


[Reprinted  from  the  UNIVERSITY  OF  CALIFORNIA  CHRONICLE,  Vol.  IX,  No.  2] 


BERKELEY 

THE  UNIVERSITY  PRESS 
1907 


TABLE  OF  CONTENTS. 

PAGE 

Introduction  1 

Part  I.  The  narrative  history  of  the  treaty  4 

Section  1.  Conditions  rendering  negotiations  necessary  4 

Section  2.  Jay's  appointment,  departure  and  journey  to 

London  5 

Section  3.  London,  and  the  arrangements  with  Lord  Gren- 

ville  9 

Section  4.  The  negotiations  in  general  and  the  return  of  the 

treaty  9 

Section  5.  The  treaty  in  America  11 

Part  II.     The  political  history  of  the  treaty  14 

Section  1.     Causes  of  the  treaty 15 

(a)   Desires  for  a  commercial  treaty  15 

(ft)   Commercial  spoliations  17 

(c)  Treaty  violations 18 

(d)  Political  agitations  20 

Section  2.     The  negotiations  21 

(a)   The  breaking  of  the  treaty  of  1783  22 

(6)   The  slavery  question  23 

(c)  The  question  of  impressment  24 

(d)  Contraband  of  war  24 

Section  3.     The  treaty  .'. 26 

(«)  Article  by  article  26 

(&)  As  a  whole  34 

Section  4.     The  treaty  in  the  United  States  37 

(a)  Advice  of  the  Senate  38 

(6)   Katffication  by  the  President  40 

(c)  Appropriation  by  the  House  of  Eepresentatives  41 

(d)  Attitude  of  the  people  45 

Opposition   45 

Defense    49 

Section  5.     The  treaty  in  Great  Britain  51 


« 3  «J 


PAGE 

Part  III.     Results  of  the  treaty  53 

Section  1.     The  execution  of  articles  providing  for 

(a)   Evacuation  of  forts  54 

(&)   Relations  with  Indians  54 

(c)  Fixing  of  boundaries 54 

(d)  Payment  of  debts  57 

Section  2.     Questions  of  constitutional  and  international  law  59 

Section  3.     Commercial  interests  61 

Section  4.     Foreign  relations  65 

(a)   Spain 65 

(6 )  France    65 

Section  5.     Influence  of  slavery  interests  67 

Conclusion    69 

Appendices  70 

Bibliography   88 

Bibliography  for  the  Map  96 

Map  97 


THE  TREATY  OF  AMITY,  COMMERCE,  AND 

NAVIGATION  BETWEEN  GREAT  BRITAIN 

AND  THE  UNITED  STATES.1 


EGBERT  B.  EANKIN. 


Taken  singly,  the  year  1794  contains  the  period  of 
greatest  peril  to  the  American  union  and  its  international 
relations  which  the  annals  of  this  country  have  yet  recorded. 
Only  eleven  years  had  passed  since  the  treaty  of  peace  was 
signed,  closing  a  vital  revolutionary  war  which  had  drained 
the  resources  of  the  colonies  to  their  utmost.  During  the 
intervening  period  of  those  eleven  years  one  government 
had  been  established  which  had  proved  so  inadequate  in  two 
of  its  branches  that  it  was  laid  aside,  leaving  only  hesitancy 
and  doubt  of  a  union  for  the  new  government  to  meet.  The 
constitution  of  this  new  government  had  been  in  force  but 
five  years  and  had  by  no  means  convinced  the  people  that 
it  was  qualified  to  administer  to  their  diverse  interests.  It 
certainly  did  not  embody  the  unqualified  ideas  for  govern 
ment  of  any  one  man,  or  of  a  state,  or  of  a  national  party, 
and  in  so  far  as  it  failed  in  this,  so  far  was  it  carefully 
watched  by  the  statesmen  who  had  formed  it. 

Such  were  the  internal  conditions.    Abroad  a  bitter  war 
existed  between  England  and  France  and  with  these  two 
countries  our  international  relations  were  primarily  con 
nected.    With  England,  the  mother  country,  there  had  been 
1  Bryce  Historical  Prize  Essay,  1906. 


76 


a  recent  war,  and  since  independence  had  been  granted,  her 
attitude  had  been  haughty  and  overbearing.  France  had 
been  the  staunch  ally  of  the  American  colonies  during  the 
period  of  the  Revolution  and  now  expected  reciprocal  aid 
and  attention.  Racial  pride  and  national  interests  de 
manded  an  amicable  relation  with  Great  Britain ;  sympathy 
and  national  gratitude  demanded  every  attention  in  behalf 
of  France.  President  Washington  in  his  appreciation  of 
these  conditions  aptly  described  them  :2  ' '  To  sum  the  whole 
up  in  a  few  words :  I  have  never,  since  I  have  been  in  the 
administration  of  the  government,  seen  a  crisis  which,  in 
my  judgment,  has  been  so  pregnant  with  interesting  events, 
nor  one  from  which  more  is  to  be  apprehended. ' ' 

Of  all  the  policies  which  presented  themselves  to  this 
government  but  one  met  with  national  approval.  That  was : 
The  United  States  can  not  remain  uninterested  and  obliv 
ious  to  the  opportunities  now  presented;  it  must  take  some 
definite  stand  and  maintain  it.  What  this  policy  should  be 
was  the  vital  question  in  the  crisis  of  the  administration. 

As  a  solution  of  this  question  and  as  one  of  the  interest 
ing  events  from  which  much  was  apprehended  the  adminis 
tration  decided  upon  negotiations  with  England  through  its 
envoy  extraordinary,  John  Jay. 

But  for  the  success  of  this  envoy  at  the  British  court  in 
London,  the  early  history  of  this  government  would  have  to 
be  rewritten.  As  is  shown  in  the  following  pages,  war,  in 
all  likelihood,  would  have  resulted,  and  for  war  "the  United 
States  was  never  more  unprepared. ' '  A  conservative  state 
ment  maintains  that  the  independence  which  the  colonies 
had  so  lately  won  would  have  suffered  greatly.  It  is  hardly 
less  conservative  to  say  that  independence  would  have  suf 
fered  irredeemably. 

It  is  with  these  negotiations  that  this  essay  has  to  deal, 
and  a  word  as  to  its  sources  and  method  of  development 


2  Washington,  ' '  Writings, ' '  Vol.  XI,  p.  48.    Cf.  Gibbs,  ' '  Memories 
of  Wolcott, '  >  Vol.  I,  p.  327. 


3]  77 

might  be  in  keeping  with  a  better  understanding  of  the 
subject. 

In  regard  to  sources,  this  essay  has  been  unusually  for 
tunate  in  having  a  large  field  of  original  material.  The 
greatest  contributors  to  this  field  have  been  the  American 
State  Papers,  Foreign  Relations,  containing  all  the  original 
documents  relative  to  the  negotiations,  and  the  Annals  of 
Congress,  containing  all  the  speeches  which  embody  the 
views  of  this  as  well  as  foreign  countries.  Besides  these, 
there  is  a  great  amount  of  indispensible  material  which  is 
minor  only  in  the  quantity,  not  quality,  which  it  contrib 
utes.  In  this  class  are  noted  the  diaries,  letters,  speeches, 
and  writings  of  contemporary  statesmen  who  rank  among 
the  greatest  which  this  or  any  other  country  has  had  the 
fortune  to  possess.  George  Washington,  Alexander  Hamil 
ton,  and  James  Madison  might  head  this  list.  Upon  such 
primary  sources  is  the  evidence  in  this  essay  based.  All 
interests  contained  herein  have  been  taken  from  first-hand 
materials  and  the  great  amount  of  secondary  works  ap 
pended  have  been  used  only  in  cross  reference  and  most 
genera]  considerations.  There  has  been  much  subsequent 
periodical  literature  which  is  of  such  slight  importance  as 
hardly  to  merit  attention.  However,  one  exception  must  be 
made  to  the  general  condemnation  of  periodicals,  and  that 
is  in  favor  of  the  contemporary  newspapers  published  at 
Philadelphia,  The  American  Daily  Advertiser  and  the 
Aurora.  \ 

In  regard  to  the  development  of  this  subject,  several 
methods  presented  themselves.  But  upon  a  summary  view 
the  material  divided  itself  most  naturally  into  three  parts. 
The  first  part  consists  of  a  chronological  and  narrative  his 
tory  of  the  events  which  surround  the  making  of  the  treaty. 
The  second  part  contains  an  exposition  of  the  principles  in 
volved  in  the  negotiations  and  in  the  treaty  itself.  Finally, 
there  appear  the  subsequent  results  of  these  negotiations 
with  an  explanation  of  the  objects  effected  by  that  docu- 


78  [4 

ment.  And  there  are  added  other  interests  which  resulted 
from  this  special  mission  to  England  but  of  which  there  is 
absolutely  no  trace  or  even  suggestion  in  the  articles  as 
finally  ratified  by  the  two  nations. 

The  Treaty  of  Amity,  Commerce,  and  Navigation  be 
tween  Great  Britain  and  the  United  States,  or  as  it  was  pop 
ularly  called,  Jay's  Treaty  of  1794,  affords  a  study  of  the 
political,  commercial,  and  international  interests  during  the 
first  years  of  this  government. 

I.— THE  NAEEATIVE  HISTOKY  OF  THE  TKEATY. 

History,  by  its  definition  of  evolutionary  processes,  is 
best  illustrated  in  its  narration,  but  its  narration  in  this 
place  may  serve  an  additional  purpose — that  of  a  general 
understanding  of  the  most  unpopular  treaty  which  the 
United  States  ever  had  the  misfortune  to  contract. 

1.  Some  of  the  conditions  which  led  up  to  this  treaty 
were  of  long  standing.  Many  of  them  had  existed  before 
the  Revolutionary  War.  Likewise,  there  were  some  arising 
from  later  reasons.  There  had  been  an  attempt  to  settle 
many  points  of  difference  in  the  treaty  of  peace  in  1783,  and 
the  breaking  of  certain  provisions3  in  this  treaty  was  one  of 
the  main  causes  demanding  a  settlement.  The  retention  of 
the  forts4  in  the  northern  and  western  parts  of  the  United 
States  acted  as  ' '  a  thorn  in  the  side  of  the  young  republic, ' ' 
and  another  action  equally  painful  was  the  ruinous  com 
mercial  policy  which  had  been  adopted  and  enforced  by  the 
British  Orders  in  Council.  These  had  worked  special  injury 
in  the  Admiralty  Courts  of  the  West  Indies,  where  hun 
dreds  of  ships,  particularly  from  New  England,  had  been 
seized  and  condemned  for  carrying  French  produce  or  pro 
visions  to  French  ports.  The  impressment  of  American 
seamen  was  another  source  of  irritation.  All  these  direct 

8  Vide  Appendix  E. 
*  Vide  p.  18. 


5]  79 

causes  were  harped  upon  by  the  spirit  of  war  on  the  part  of 
the  New  England  Democrats.  The  Republicans  over  the 
country  adopted  retaliation  in  the  form  of  a  suspension  of 
all  commercial  relations  with  Great  Britain.  Both  policies 
pointed  directly  to  war,  which  was  a  thing  to  be  dreaded  in 
the  extreme,  owing  to  our  new  government  and  complete 
lack  of  preparation  for  any  encounter  whatsoever.  Against 
this  popular  demand  for  war,  which  was  voiced  in  many 
assemblies  and  made  them  scorn  British  relations  and  re 
joice  in  French  victories,  there  was  another  party  which 
realized  what  war  would  mean  for  the  United  States  under 
existing  conditions.  This  party  adopted  the  policy  of  peace 
ful  negotiations.  At  the  head  of  this  conservative  party 
stood  President  Washington.  To  his  clear  insight  and 
statesman-like  conduct  more  is  due  than  to  any  one  man  of 
his  time.  Of  his  conduct  more  will  be  said  hereafter,  but 
at  present  let  the  words  of  the  British  chronicler  suffice: 
"Happily  for  that  country  (America)  and  Great  Britain 
itself,  General  Washington  still  presided  over  American 
councils."5  The  policy  of  peace  could  be  assured  only  by 
immediate  negotiations  to  relieve  the  tension  upon  strained 
national  relations.  The  United  States  had  but  recently  en 
joyed  the  honor  of  receiving  an  embassador  from  Great 
Britain.  Mr.  Hammond  was  a  man  whom  Fisher  Ames 
properly  estimated  as  lacking  in  prudence  and  moderation.6 
Our  own  minister  at  London,  Mr.  Pinckney,  was  a  man  of 
prejudices  and  strongly  pro-Gallician,  although,  as  Wash 
ington  declared,  his  confidence  in  him  remained  undimin- 
ished.7 

2.  Conditions  demanded  a  special  envoy,  and  Washing 
ton  reasoned  that  such  a  representative  would  serve  more 
properly  to  impress  upon  the  minds  of  the  British  admin 
istrators  the  seriousness  and  dignity  of  the  occasion,  and  to 
insure  the  British  Government  that  the  executive  of  the 

5  Annual  Eegister,  1794,  p.  148. 

8  Vide  "  Works."    Letter  to  C.  Gore,  March  5,  1794. 

7  Message  to  Senate,  April  16,  1794. 


80  [6 

United  States  intended  if  possible  to  maintain  neutrality.8 
With  an  eye  to  this  purpose,  his  choice  first  rested  upon 
Alexander  Hamilton,  whose  work  had  shown  him  a  man  of 
no  mean  ability.  But  Hamilton  had  many  and  some  bitter 
enemies,  and  Washington  was  warned  by  Monroe  that  a 
treaty  satisfactory  in  most  respects  would  find  opposition  on 
the  prejudiced  grounds  that  it  was  Hamilton 's  work.  Ham 
ilton  was  deeply  grieved  at  being  laid  aside,  but  proposed 
the  name  of  John  Jay  to  Washington,  who  immediately  as 
sented.  The  appointment  was  laid  before  the  Senate  on 
the  19th  of  April,  1794,  and  three  days  of  stormy  debate 
followed  before  the  Senate  confirmed  the  nomination.  The 
final  vote  stood  eighteen  in  favor  and  eight  against,  with 
Aaron  Burr  and  James  Monroe  of  Virginia  at  the  head  of 
the  opposition.  Jay  was  holding  Circuit  Court  at  Phila 
delphia  when  his  nomination  was  confirmed,  so  no  time  was 
lost  in  notifying  him  of  his  appointment.  That  he  saw  the 
difficulties  before  him  can  not  be  doubted.  He  writes :  "I 
will  go,  foreseeing  the  consequences  to  my  personal  popu 
larity.  *  *  *  The  good  of  my  country  I  believe  de 
mands  the  sacrifice  and  I  am  ready  to  make  it. '  '9  He  writes 
to  his  wife  upon  the  15th  of  April,  1794,  that  his  dilemma 
lay  between  personal  and  public  considerations.  On  the  19th 
he  writes  in  further  explanation:  ''No  appointment  ever 
operated  more  unpleasantly  upon  me,  but  the  public  con 
siderations  which  were  urged,  and  the  manner  in  which  it 
was  pressed,  strongly  impress  me  with  the  conviction  that 
to  refuse  it  would  be  to  desert  my  duty  for  the  sake  of  my 
ease  and  domestic  concerns  and  comforts."10  His  personal 
disinclination  was  not  without  foundation,  for  no  portion 
of  his  career  has  been  subject  to  more  unsparing  criticism 
than  that  on  which  he  was  about  to  enter. 

The  spirit  of  the  country  was  not  so  much  in  opposition 
to  Jay  or  a  treaty  which  he  might  negotiate  as  it  was  to  any 

8  Message  to  Senate,  April  16,  1794. 

9  Johnston 's  ' '  Life  and  Correspondence  of  John  Jay, ' '  Vol.  IV. 

10  Johnston  's  ' '  Life  and  Correspondence  of  John  Jay, ' '  Vol.  IV. 


7]  81 

treaty  with  Great  Britain.  This  spirit  found  expression  in 
many  ways  and  some  of  these  were  in  personal  attacks  upon 
the  envoy-elect.  This  popular  spirit  is  amply  illustrated  in 
a  motion  passed  in  the  House  of  Representatives  two  days 
after  Jay's  appointment.  This  motion  was  a  prohibition 
upon  importation  of  produce  of  British  growth  or  manufac 
ture  after  date.  The  very  apparent  purpose  was  to  render 
Jay 's  mission  nugatory.  This  motion  passed  the  House  and 
was  only  stopped  in  the  Senate  by  the  casting  vote  of  the 
Vice-President.  However,  Washington  in  all  probability 
would  have  vetoed  it. 

Jay  accepted  his  appointment  to  England  without  vacat 
ing  his  office  as  Chief  Justice  of  the  United  States,  although 
he  never  afterwards  occupied  that  position.  This  was,  how 
ever,  one  of  the  great  objections  to  his  appointment,  raised 
by  the  party  in  opposition.  It  is  indeed  difficult  to  answer, 
for  only  imperative  necessity  and  a  lack  of  occupation  for 
the  Court  would  authorize  this  infringement  upon  the  inde 
pendence  of  the  judiciary.  A  second  objection  was  to  the 
monarchial  principles  which  he  is  said  to  have  entertained. 
But  when  this  country  was  debating  on  whether  to  receive 
a  minister  from  the  French  Republic  or  a  regent  from  the 
monarchy  of  France,  Jay  promptly  decided  to  receive  no 
regent  from  a  monarchy  unless  it  was  one  de  facto.  A  third 
objection  was  his  indifference  to  the  navigation  rights  of 
the  Mississippi ;  a  fourth,  his  attachment  for  England ;  and 
a  fifth,  his  aversion  to  France.  The  latter,  in  the  light 
of  subsequent  events,  seems  to  have  been  more  properly 
grounded.  A  sixth  objection  was  a  purely  political  one  with 
no  international  interest.  It  is  best  explained  in  the  con 
flicting  views  of  the  north  and  south.  Mr.  Adams  expressed 
the  sentiments  of  the  north  when  he  wrote  that  if  Jay  suc 
ceeded  in  his  undertaking  it  would  be  a  strong  recommen 
dation  for  the  Presidency.  This  was  what  the  southern 
states  feared  as  being  most  directly  in  opposition  to  their 
hopes  of  placing  Thomas  Jefferson  in  the  Presidential  chair. 


82  [8 

Jay  realized  this  sacrifice.  He  said :  "No  man  could  form 
a  treaty  with  Great  Britain,  however  advantageous  it  might 
be  to  the  country,  who  would  not  by  his  agency  render  him 
self  so  unpopular  and  odious  as  to  blast  all  hopes  of  political 
preference. ' ' 

Throughout  these  early  years  of  our  government  a  con 
stant  conflict  will  be  noticed  between  what  the  popular 
parties  desired  and  the  policy  of  the  administration.  The 
nomination  of  Jay  is  a  point  in  evidence.  Madison  wrote 
to  Thomas  Jefferson  on  the  llth  of  May,  1794,  stating  that 
this  appointment  had  undergone  ' '  the  animadversion  of  the 
press, ' J11  and  that  this  action  together  with  the  measure  for 
a  discriminating  duty  on  British  tonnage  would  be  a  power 
ful  blow  upon  the  popularity  of  the  President. 

The  men  in  power  had  confidence  in  John  Jay.  His 
qualifications  "included  an  unyielding  integrity,  a  keen 
sense  of  justice,  an  unusually  sound  judgment,  if  not  bril 
liant;  freedom  from  prejudice,  and  a  lofty  spirit  of  pride 
in  his  country 's  honor. '  '12  He  also  had  experience — to  him 
perhaps  better  than  any  other  man  was  known  the  entire 
history  of  our  relations  with  Great  Britain.  Contrasted 
with  Hamilton,  he  possessed  more  experience,  by  his  work 
in  the  negotiations  of  the  treaty  of  1783,  greater  popularity, 
moderation  and  freedom  from  partiality  toward  either 
Great  Britain  or  France.  Hamilton  advocated  his  appoint 
ment  as  "the  only  man  in  whose  qualifications  for  success 
there  would  be  thorough  confidence  and  him  whom  alone  it 
would  be  advisable  to  send. ' ' 

Jay  departed  for  England  in  the  ship  "Ohio"  on  the 
12th  of  May,  1794.13  His  party  consisted  of  Colonel  Trum- 
bull,  who  was  to  act  as  his  Secretary,  and  his  son.  Upon 
his  departure  Jay  addressed  about  a  thousand  of  his  fellow 
citizens  who  had  collected  at  the  wharf  to  wish  him  success 
in  his  undertaking.  Cheers  were  given  and  a  salute  fired 

11  Madison 's  Letters  and  Other  Writings,  Vol.  II. 

12  American  Historical  Keports,  1901,  Vol.  I. 

13  American  Daily  Advertiser,  May  14,  1794. 


9]  83 

as  his  vessel  passed  out  of  North  River.  His  voyage  was 
made  very  unpleasant  by  seasickness,  and  he  was  in  ill- 
health  when  he  arrived  at  Falmouth  on  June  8,  1794. 

3.  The  quiet  journey  across  England  rested  him  and 
he  arrived  in  London  June  15;  rented  his  apartments  in 
the  Royal  Hotel,  Pall  Mall,  and  asked  for  an  early  inter 
view  with  Lord  Grenville,  the  British  negotiator.    William 
Wyndham,  or  Lord  Grenville,  son  of  the  projector  of  the 
Stamp  Act,  had  been  appointed  by  the  King  because  he  was 
a  good  statesman,  well  educated,  able  in  ministerial  duties, 
stately  in  bearing,  uncompromising  in  principle,  firm  in  his 
convictions,  high  toned  and  honorable.     Hardly  had  Jay 
landed  at  Falmouth  before  opposition  was  started  against 
him  in  America,  first  in  New  York.    This  was  not  contrary 
to  his  expectations,  for  he  wrote  to  Washington  on  Sep 
tember  13,  1794,  "that  attempts  will  be  made  in  America 
to  frustrate  this  negotiation,  I  have  not  the  most  distant 
shadow  of  a  doubt.    I  brought  this  belief  and  opinion  with 
me."14 

Jay  presented  his  letters  of  credence  to  His  Majesty 
George  III,  and  the  Queen,  in  politic  conformity  with  Brit 
ish  politeness.  This  courtesy  and  good  manner  was  later 
made  a  point  of  special  objection  by  the  American  oppo 
sition.  His  reception  was  so  courteous  as  to  reassure  the 
administrations  of  both  countries.  His  letters  are  filled  with 
favorable  reports.15  Without  difficulty  or  delay  he  entered 
into  negotiations  with  Lord  Grenville,  which  they  agreed, 
upon  Jay's  suggestion,  were  for  the  most  part  to  be  verbal. 

4.  Certain  maritime  and  commercial  controversies  were 
first  taken  up,  followed  by  negotiations  upon  treaty  viola 
tions.     From  this  point  the  negotiations  became  more  in 
detail.    As  a  settlement  was  neared,  projected  treaties  were 
written  up  by  each  and  submitted  to  the  other  for  objections 
and  eliminations.    By  this  process  articles  which  could  not 

14  Johnston's  "Correspondence  and  Public  Papers  on  John  Jay." 
Vol.  IV. 

"Appendix  A  (2). 


84  [10 

be  agreed  upon  were  thrown  out  and  certain  modifications 
in  other  articles  were  finally  settled  upon.  Throughout  the 
entire  negotiations  the  utmost  harmony  prevailed  and  ex 
pressions  of  great  respect  were  exchanged  even  after  Jay 
had  returned  to  America.  Upon  Jay's  first  meeting  with 
Lord  Grenville  he  expressed  sentiments  very  favorable  to 
his  character  and  manner,  adding  that  "if  his  disposition 
is  hostile  he  conceals  it  admirably. ' '  Jay 's  own  conduct  was 
outlined  by  himself  in  a  letter  to  Kandolph,  to  acquire  "the 
confidence  and  esteem  of  the  Government,  not  by  improper 
compliances,  but  by  that  sincerity,  candor,  truth  and  pru 
dence,  which  in  my  opinion  will  always  prove  to  be  more 
wise  and  effectual  than  finesse  and  chicane. ' ' 

A  reading  of  the  treaty  convinces  one  of  the  dictatorial 
attitude  assumed  by  the  British  Government.  This  can  be 
accounted  for  as  the  result  of  a  treaty  with  a  more  powerful 
nation,  by  the  necessity  which  Jay  felt  of  forming  a  treaty 
of  some  kind,  and  by  the  previous  knowledge  Grenville  had 
of  Jay's  character  and  how  best  to  approach  him.  The 
statesmen  of  that  day  did  not  live  so  much  in  the  light  of 
the  public  press.  Therefore,  the  little  biographical  sketch16 
of  Jay's  character,  penned  by  Mr.  Elliott,  a  former  Lieu- 
tenant-Governor  of  New  York,  and  sent  to  Grenville  by 
Lord  Auckland,  was  of  great  use.  It  was  of  much  greater 


18  This  was  sent  on  the  22d  of  June,  1794,  in  anticipation  of  Jay's 
mission.  Its  accuracy  and  the  purchase  it  gave  Grenville  in  approach 
ing  Jay  authorizes  it  in  full :  ' '  I  have  known  Mr.  Jay 's  character  in 
timately  from  his  outset  in  public  life.  He  was  originally  under  me 
in  adjusting  some  boundary  lines  of  the  Provinces.  He  has  good 
sense  and  much  information;  has  great  appearance  of  coolness,  and  is 
a  patient  hearer  with  a  good  memory.  He  argues  closely,  but  is  long- 
winded  and  self-opinioned.  He  can  bear  any  opposition  to  what  he 
advances,  provided  that  regard  is  shown  to  his  abilities.  He  may  be 
attacked  by  good  treatment,  but  will  be  unforgiving  if  he  thinks  him 
self  neglected;  he  will  expect  to  be  looked  up  to,  not  merely  as  an 
American  agent,  but  as  Mr.  Jay,  who  was  in  Spain,  who  has  been  high 
in  office  from  the  beginning.  On  the  whole,  they  could  not  have  made 
a  better  choice,  as  he  certainly  has  good  sense  and  judgment,  both  of 
which  must  have  been  mellowed  since  I  saw  him ;  but  almost  every  man 
has  a  weak  and  assailable  quarter,  and  Mr.  Jay's  weak  side  is  Mr. 
Jay."  Grenville  Correspondences,  Vol.  II,  p.  578. 


11] 


85 


value  when  Mr.  Jay  had  declared  his  attitude  to  be  one 
1 '  rather  to  accommodate  than  convict  or  convince. ' ' 

The  negotiations  finally  came  to  a  satisfactory  settle 
ment  upon  the  19th  of  November,  1794.  The  document  was 
signed  at  St.  James  Square,  where  most  of  the  negotiations 
had  been  carried  on. 

The  original  and  duplicate  copies  of  the  treaty  were  sent 
by  two  different  packets  from  London  to  America. 

They  raced  across  the  Atlantic  to  place  the  treaty  in  the 
hands  of  the  President  before  Congress  adjourned.  The 
first  packet  to  reach  the  American  shore  arrived  at  Norfolk, 
Virginia,  where  a  special  messenger  was  dispatched  and 
arrived  at  Philadelphia,  mud-bespattered,  frost-bitten,  and 
fatigued,  on  the  7th  of  March,  1795.  Congress  had  ad 
journed  seven  days  before. 

5.  A  special  meeting  of  the  Senate  was  called  for  June 
8,  1795,  and  as  soon  as  a  quorum  was  present  debate  began 
upon  the  treaty.  Ratification  was  advised  on  June  24.  At 
the  beginning  of  the  session  a  motion  was  passed  that  all 
discussion  be  kept  secret.  So  the  debates  were  never  en 
tered  in  the  proceedings  of  the  Senate.  The  fact  that 
•neither  the  discussions  nor  the  treaty  was  made  public 
aroused  the  suspicions  of  the  Republicans.  People  all  over 
the  country  desired  to  see  the  treaty,  and  when  it  was  with 
held  some  of  the  most  vile  and  violent  opposition  was  com 
menced  before  the  content  of  the  treaty  was  even  known. 
The  country  was  divided  by  party  animosities  and  political 
questions.  The  opposition  to  the  treaty,  instigated  by  the 
tyrannical  madness  of  French  influence,  gave  expressions  to 
feelings  which  the  press  of  this  country  has  never  again 
ventured  upon.17  It  can  be  described  as  an  importation  of 
that  spirit  which  agitated  France. 

This  spirit  was  first  directed  against  that  conservative 
and  cautious  body,  the  United  States  Senate.  Upon  their 
advocation  of  the  President's  ratification  the  condemnation 


17  Vide  Appendix  C. 


86  [12 

of  that  body  was  exceedingly  severe,  and  all  the  force  of 
the  opposition  was  turned  against  the  President  to  suppli 
cate,  persuade,  and  threaten  him  into  a  refusal  of  its  ratifi 
cation.  Washington  carefully  listened  to  all  the  arguments 
which  were  brought  to  bear  and  after  mature  consideration 
signed  the  treaty  as  it  had  been  handed  to  him  by  the  Senate, 
that  is,  with  the  exception  of  the  twelfth  article,  regarding 
West  India  trade.  The  crisis  was  reached  at  the  moment 
of  this  decision,  but  minor  questions  which  were  involved 
agitated  the  public  until  long  after. 

Notwithstanding  the  admiration  and  respect  in  which 
Washington  was  held,  it  can  not  be  supposed  that  he  would 
escape  any  of  the  severe  criticism  which  was  given  so  gener 
ously  by  the  party  in  opposition  upon  any  one  in  favor  of 
the  ratification  of  Jay's  treaty.  Among  unjust  criticisms 
was  the  suggestion  of  the  impeachment  of  the  national  ex 
ecutive  as  a  remedy  for  the  absolute  disrespect  of  the  desires 
of  that  party  which  called  itself  the  people. 

While  these  party  contentions  were  going  on  Jay  re 
turned  to  America,  May  28,  1795.  He  had  remained  in 
England  because  his  health  would  not  permit  a  winter  voy 
age  and  that  he  might  attend  to  any  matters  which  should 
arise  from  the  consideration  of  the  treaty  in  America.  He 
received  a  warm  welcome  from  his  fellow-citizens,  more 
warmly  tendered  because  of  his  election  two  days  before  his 
arrival  to  the  governorship  of  the  state  of  New  York.  He 
thereupon  resigned  the  Chief  Justiceship  in  the  United 
States  Supreme  Court,  June  29,  1795.  This  strange  contra 
diction  on  the  part  of  the  citizens  of  New  York  to  Jay's 
national  condemnation  serves  to  prove  that  it  was  not  Jay, 
personally,  but  the  treaty  itself  which  was  so  despised. 

It  is  quite  characteristic  of  the  man  that  in  the  fierce 
war  of  speeches  and  pamphlets  which  continued  during  the 
period  of  ratification  Jay  took  absolutely  no  part.  He  did 
not  write  even  an  anonymous  letter  or  by  word  or  action 
influence  the  President  or  Senate  in  a  matter  whose  inter- 


13]  87 

ests  he  had  more  carefully  studied  out  than  any  other  states 
man  in  America.  The  opposition  to  the  treaty  reached  its 
height  during  the  debate  in  the  Senate.  It  was  caused  by 
the  untimely  publication  of  the  treaty.  Notwithstanding 
all  the  secrecy  which  was  attempted  by  the  Senate,  some  one 
saw  a  copy  which  the  Senators  were  given  for  consideration 
and  later  wrote  down  for  publication  all  he  could  recall 
from  memory.  It  was  so  advertised  in  the  Aurora  of  Phila 
delphia.  Naturally  there  were  many  inaccuracies  in  the 
statements,  and  Stephen  Thompson  Mason,  a  strong  Re 
publican  from  Virginia,  determined  that  the  people  should 
not  be  misled.  Contrary  to  the  resolution  of  the  Senate,  he 
sent  his  copy  to  Benjamin  F.  Bache,  and  on  the  morning  of 
July  2,  1795,  the  treaty  appeared  in  full  in  the  American 
Daily  Advertiser.  Pamphlets  containing  the  treaty  were 
immediately  struck  off  and  packages  of  these  were  sent,  wet 
from  the  press,  to  every  large  town  in  the  union.  At  noon 
on  July  2  they  could  be  bought  in  New  York  City  and  on 
the  6th  of  July  they  were  for  sale  in  Boston.  Mason's 
praise  was  sounded  far  and  wide  as  a  Senator  with  the  in 
terests  of  the  people  at  heart. 

The  popular  opposition  to  the  treaty  was  strongly  re 
vived  when  the  bill  for  appropriating  necessary  funds  to 
put  the  treaty  into  execution  came  before  the  House  of 
Representatives.  The  sentiments  of  the  party  were:  We 
have  appealed  to  the  Senate  and  President  alike  to  refuse 
the  ratification  of  this  treaty.  They  have  alike  ignored  the 
will  of  the  people.  Let  us  now  appeal  to  these  men  who  are 
our  direct  representatives  and  therefore  have  interests  in 
common  with  the  people;  who  are  not  afraid  of  war  with 
Great  Britain,  and  who  are  in  sympathy  with  the  independ 
ence  seekers  of  France.  The  result  was  the  first  instance  in 
the  history  of  this  country  when  the  discretionary  power  of 
the  House  of  Representatives  in  regard  to  treaty  appropria 
tions  was  strongly  and  enthusiastically  maintained  by  a 
majority  of  the  House.  The  precedent  here  established  is 
left  for  discussion  under  constitutional  law. 


88  [14 

Congress  was  called  for  November  3,  1795,  and  the 
House  reported  a  quorum  for  business  open  the  4th  instant. 
The  Senate  did  not  have  a  quorum  until  the  19th,  when  they 
were  jointly  addressed  by  the  President.  A  few  minor  mat 
ters  were  settled  and  the  main  topic  of  the  session  was  taken 
up — an  appropriation  for  the  Treaty  of  Amity,  Commerce, 
and  Navigation  with  Great  Britain.  Debate  upon  the  treaty 
began  with  a  motion  by  Edward  Livingston  of  New  York, 
calling  on  the  President  for  the  instructions  to  Jay  as 
Envoy  Extraordinary.  This  was  passed  March  2,  1796. 
President  Washington  refused  to  comply  with  this  request 
in  a  document  dated  March  30,  1796.  The  debate  upon  this 
question  continued  from  March  7  to  April  7.  Finally  the 
treaty  was  debated  article  by  article  and  as  a  whole,  and 
the  congressional  records  in  this  particular  give  some  of 
the  best  speeches  in  the  history  of  its  congressmen.  The 
appropriation  was  finally  granted  in  an  act  passed  May  8, 
1796.  The  persistent  advocates  of  the  treaty  had  won. 
Their  victory  was  based  upon  sound  reason  and  unflinching 
toil.  The  last  appeal  of  the  opposition,  that  is,  to  the  senti 
ments  of  the  House,  had  failed.  To  illustrate  how  bold  some 
of  these  appeals  to  sentiment  were,  on  the  4th  of  January, 
1796,  when  the  House  had  met  to  consider  the  appropriation 
for  Jay's  treaty,  a  beautiful  French  flag  was  presented  to 
the  government.  It  was  received  with  loud  acclamation. 
After  the  failure  of  sentiment,  the  cause  and  party  retired 
from  the  field,  leaving  only  its  unenviable  record  for  history. 

II.— THE  POLITICAL  HISTOEY  OF  THE  TREATY. 

The  political  history  of  the  treaty  deals  with  the  declar 
ation  and  establishment  of  principles  which  had  either  been 
violated  or  which  were  to  govern  the  conduct  of  the  two 
nations  in  the  future.  They  are  here  regarded  as  first  dis 
cussed  and  then  embodied  in  an  international  contract  as 
adopted  by  the  contracting  governments.  While  treaties 


15] 

may  be  formed  during  the  most  amicable  relations,  the 
treaty  of  1794  had,  as  its  great  cause,  the  settlement  of 
differences. 

1.     For  years  a  treaty  of  commerce  had  been  desired 
with  Great  Britain.    It  was  felt  that  for  want  of  it,  trade 
was    "manifestly    declining"    and    might    be    "entirely 
ruined."18     Attempts  had  been  constantly  made  to  nego 
tiate  a  treaty.    The  Peace  Commission  of  1783  was  so  em 
powered,    but    was    unsuccessful.      Special    powers    were 
granted  to  the  American  Commission,  consisting  of  Adams, 
Franklin,  and  Jay,  ten  days  after  the  signing  of  the  treaty 
of  peace.    Their  success  was  no  better  than  that  of  the  Peace 
Commission.    Power  was  then  granted  to  John  Adams  when 
he  was  sent  as  minister  to  London  in  1785,  to  Governor 
Morris  when  he  succeeded  Adams  in  1789,  and  to  Morris' 
successor,  Thomas  Pinckney,  in  1792.    An  attempt  to  force 
England  to  agree  to  a  treaty  was  part  of  a  policy  of  the  ex 
isting  administration.    This  is  illustrated  by  the  arguments 
in  all  legislative  bodies  for  a  more  energetic  government 
which  would  inspire  a  dread  reprisal  and  by  the  bills  be 
fore  the  House*  of  Representatives  in  the  session  of  1794, 
discriminating  between  nations  having  and  not  having  trea 
ties  with  this  government,  by  levying  heavier  duties  on  those 
countries  not  protected  by  special  regulations.19    On  March 
26,  1794,  an  embargo  was  laid  against  British  ships  for 
thirty  days,  and  at  the  end  of  that  period  renewed  for  an 
other  thirty  days.     The  day  following  the  levying  of  this 
embargo,  March  27,  Mr.  Dayton  of  New  Jersey  moved  to 
sequester  all  money  due  British  creditors  and  use  the  same 
as  an  indemnity  for  the  losses  of  ship  owners.    On  April  21 
the  Republicans  moved  to  suspend  all  commercial  relations 
with  Great  Britain.    These  were  motions  which  in  the  par 
lance  of  international  law  are  termed  "measures  short  of 
actual  war. ' ' 

"Letter  of  Stephen  Higginson,  April,  1784.  Annual  Keport  of 
American  Historical  Association,  1896,  Vol.  I. 

18  State  Papers,  Foreign  Eelations,  Vol.  I,  p.  711.  Cf.  Lalor  s 
Cyclopaedia  of  Political  Science,  Vol.  II,  p.  654. 


90  [16 

Therefore,  the  determination  to  send  a  special  envoy  to 
England  was  a  bold  and  decided  resolution,  fraught  with 
severe  reproach  and  censure,  but  years  later  culminating  in 
good.  The  policy  was  carried  out  in  the  face  of  strong  op 
position.  It  was  the  administration  which  demanded  a 
treaty  with  Great  Britain.  This  aggravated  the  party  in 
sympathy  with  France,  for  they  recognized  the  final  prohi 
bition  of  any  closer  alliance  with  that  nation.  The  violence 
found  in  the  ''love-frenzy"  for  the  French  people  and  the 
intemperate  language  of  the  Democratic  press  was  assisted 
by  men  high  in  office  in  the  government.  The  report  of 
Thomas  Jefferson,  Secretary  of  State,  is  a  point  in  evidence. 
When  popular  resentment  had  become  excited,  Jefferson 
made  a  report  on  the  privileges  and  restrictions  of  the  com 
merce  of  the  United  States  in  foreign  countries.  In  this 
pamphlet  American  relations  with  Great  Britain  appeared 
very  unfavorable.  The  report  was  biased, ' '  the  fallacies  and 
falsehoods  *  *  *  are  sufficient  proof  that  the  avowed 
tendency  of  the  whole  report  is  to  recommend  a  closer  con 
nection  with  France,  and  to  inculcate  the  expediency  of  a 
direct  commercial  hostility  with  Great  Britain. '  '20  Madison 
in  his  resolution  before  the  House  of  Representatives  showed 
the  same  hostile  spirit.  It  is  therefore  quite  plain  that  this 
long  standing  desire  for  a  treaty  did  not  come  from  the 
people. 

There  was  no  reply  to  the  courtesy  of  sending  ministers 
to  England  until  1791,  when  that  government  was  repre 
sented  by  Mr.  Hammond.  Therefore  there  must  have  been 
other  reasons  besides  the  desires  for  a  treaty  which  induced 
Great  Britain  to  accept  the  opportunity  for  negotiations. 
The  instructions21  to  Jay  furnish  the  additional  reasons. 

There  are  two  great  sets  of  questions  which  produced 
this  international  contract.  First,  those  questions  arising 
from  the  war  in  Europe  under  which  the  vexations  and 


20Corbett,  "Porcupine  Works/'  Vol.  II,  p.  526. 
21  See  Appendix  A  (1). 


17]  91 

spoliations  of  our  commerce  may  be  placed ;  second,  the  in 
fractions  of  the  Treaty  of  Peace  in  1783. 

Probably  no  special  envoy  would  have  been  considered 
for  a  commercial  convention,  but  the  differences  of  the  two 
countries  upon  the  water  made  a  special  mission  to  Great 
Britain  possible.22  The  declaration  of  war  by  France  on 
February  1,  1793,  against  England  and  Holland  seriously 
endangered  the  prosperity  of  the  United  States.  A  large 
part  of  our  trade  went  to  France  and  French  colonies,  but 
England  patrolled  the  ocean,  boarded  our  vessels  and  seized 
French  goods  at  will.  By  such  conduct  Britain  injured  the 
commerce  of  France  and  prevented  other  powers  from  as 
sisting  her.  This  wholesale  search  of  American  vessels  was 
instigated  by  the  Orders  of  Council  commanding  British 
ships  to  stop  all  vessels  bound  for  France  and  take  any 
articles  listed  for  that  country.  Its  effect  upon  our  com 
merce  was  as  disastrous  as  the  rigid  enforcement  of  the  rule 
of  1756  in  regard  to  the  West  India  trade.  This  rule  for 
bade  a  country  to  carry  on  in  time  of  war  a  trade  which  was 
interdicted  to  it  in  time  of  peace.  After  a  few  years  of 
application  it  was  relaxed,  but  always  in  regard  to  our  trade 
with  the  British  West  Indies  it  was  strictly  enforced. 

Another  cause  of  the  treaty  was  the  impressment  of 
American  seamen  and  their  retention  in  service  contrary  to 
their  wishes.  Great  Britain  had  instituted  these  measures 
in  an  endeavor  "to  deprive  us  as  far  as  possible  of  an  active 
commerce  in  our  own  bottoms,"23  since  she  had  grown  ap 
prehensive  of  the  large  and  increasing  carrying  power  of 
the  United  States.  America  was  properly  incensed  and 
Congress  waxed  warm  in  debates  over  retaliatory  duties, 
preparations  for  war  and  the  levying  of  embargoes. 

But  Great  Britain  enjoyed  an  immense  harvest  from  her 
loose  relations  with  America,  and  this  was  recognized  by  all 
the  statesmen  who  attempted  negotiations.24  Her  situation 

22  State  Papers,  Foreign  Eelations,  Vol.  I,  p.  711. 

23  Hamilton,  ' '  The  Federalist, ' '  Paper  XI. 

24  State  Papers,  Foreign  Kelations,  Vol.  I,  p.  712. 


92  [18 

enabled  her  to  abuse  our  commerce  in  another  way,  through 
her  declaration  that  provisions  were  contraband  of  war. 
Since  1650  military  and  naval  stores  had  been  so  recognized 
in  international  law,  but  provisions  had  been  left  undecided. 
Great  Britain  wished  to  establish  the  principle  that  pro 
visions  were  to  be  so  considered  unless  especially  provided 
for  by  contracting  parties,25  and  her  legislation  was  directed 
to  that  end.  Jay's  treaty  came  at  that  unfortunate  period 
when  Great  Britain  wished  to  establish  the  contraband  char 
acter  of  provisions.  That  nation  was  therefore  extremely 
hard  upon  our  trade,  but  showed  a  proper  consideration  for 
that  of  other  countries.28 

But  there  were  interests  on  the  American  continent 
which  also  gave  rise  to  the  treaty.  The  New  England  fishing 
interests  spoke  loudly  for  war  as  a  remedy  against  the  Brit 
ish  invasion  of  their  waters.  This  complaint  was  echoed 
among  the  ship  owners. 

Then  there  were  the  violations  of  the  treaty  of  peace. 
Matters  which  had  run  over  and  demanded  settlement  were : 
First,  the  debts  which  were  owed  by  Americans  to  British 
creditors  at  the  time  of  the  Revolution,  arising  principally 
from  confiscated  estates.  The  decisions  of  the  American 
courts  in  regard  to  these  debts  can  not  be  impeached.  They 
were  not  paid  at  the  time  because  the  demands  were  large 
and  the  distress  for  money  was  extreme.  Every  available 
amount  of  money  was  put  into  an  extensive  foreign  com 
merce.  Furthermore,  a  cloud  of  war  overshadowed  the 
country.  Second,  compensation  for  the  slaves  carried  away 
upon  the  evacuation  of  this  country  by  the  British  troops 
after  the  war.  Third,  the  retention  of  the  British  forts27 
in  the  northern  and  northwestern  parts  of  the  United  States. 
These  British  garrisons  were  a  menace  to  the  settlement  of 

20  British  treaties  which  illustrate  this  principle  are  with  France, 
1667,  1668;  Spain,  1713;  Denmark,  1782;  Kussia,  1804. 

20  Orders  so  effecting  our  commerce  were  issued  upon  November  6, 
1793;  January  8  and  25,  March  18,  and  August  18,  1794. 

27  Vide  Appendix  E  and  Map.    Cf.  p.  4. 


19]  93 

the  country  around  them28  and  to  the  navigation  of  the  St. 
Lawrence  River  and  the  Great  Lakes.  In  addition  to  this, 
President  Washington  made  strong  protests  to  the  British 
King  against  the  purposing  of  these  garrisons  to  incite  the 
barbarous  Indians  of  the  frontiers  to  massacre  the  settlers.29 

The  treaty  of  1783  is  of  interest  in  this  connection  only 
in  so  far  as  its  violations  gave  rise  to  Jay's  treaty  of  1794. 
These  violations  have  been  cited  above,  yet  it  would  be 
ignoring  an  important  part  of  the  negotiations,  leading  up 
to  and  including  those  on  the  Jay  treaty,  if  no  mention  was 
made  of  the  infraction  of  our  first  international  compact. 

The  question  as  to  which  country  made  the  first  viola 
tion  of  the  treaty  of  peace  came  up  when  the  attempt  was 
made  on  the  part  of  the  British  to  obtain  compensation  for 
the  sequestration  of  debts  and  on  the  part  of  the  Americans 
for  the  exportation  of  negroes.  A  long  and  complete  dis 
cussion  followed  between  Mr.  Hammond  and  Mr.  Jefferson. 
This  is  one  of  the  finest  dissertations  on  the  principles  of 
international  law  and  relations  which  have  ever  been  given 
in  the  history  of  foreign  affairs.30  At  the  end  of  the  discus 
sion  Mr.  Hammond  found  himself  greatly  outclassed.  The 
argument  is  of  far  too  great  length  and  of  too  much  detail 
to  be  given  here.  Only  a  brief  summary  can  be  allowed. 
Jefferson  maintained  that  the  first  violation  consisted  in  the 


28  Captain  Williamson  commenced  a  settlement  near  Great  Soders, 
N.  Y.,  when  he  was  visited  on  August  16,  1795,  by  Governor  Simcoe, 
who  left  this  declaration  in  behalf  of  the  British  Government :  "I  am 
commanded  to  declare  that  during  the  inexecution  of  the  treaty  of 
peace  between  Great  Britain  and  the  United  States,  and  until  the  ex 
isting  differences  respecting  it  shall  be  mutually  and  finally  adjusted, 
the  taking  possession  of  any  part  of  the  Indian  territory,  either  for 
the  purpose  of  war  or  sovereignty,  is  held  to  be  a  direct  violence  of 
His  Majesty's  rights,  as  they  unquestionably  existed  before  the  treaty, 
and  has  an  immediate  tendency  to  interrupt,  and  in  its  progress  to 
destroy,  that  good  understanding  which  has  hitherto  existed  between 
His  Britannic  Majesty  and  the  United  States  of  America.  I  therefore 
require  you  to  desist  from  any  such  aggression."  Grenville  Corre 
spondence,  Vol.  Ill,  p.  530. 

"Complaint  was  made  of  Governor  Simcoe  and  Lord  Dorchester. 
State  Papers,  Foreign  Relations,  Vol.  I. 

80  State  Papers,  Foreign  Relations,  Vol.  I. 


94  [20 

embarking  of  the  negroes  and  the  retention  of  the  military 
posts.  Hammond  argued  that  the  first  violation  came  in 
regard  to  the  fraudulent  procedure  against  British  creditors. 

The  solution  of  the  whole  matter  lay  in  the  fact  that 
there  had  been  violations  of  the  treaty  upon  both  sides. 
The  question  as  to  the  priority  of  the  exportation  of  the 
negroes  or  of  the  confiscation  of  British  debts  is  one  of  ex 
treme  difficulty  and  with  which  this  essay  has  no  concern. 
However,  the  government  of  America,  at  that  time,  was 
under  the  Articles  of  Confederation,  the  weakness  of  which 
was  perfectly  understood  by  Great  Britain.  That  the  Con 
federate  Government  did  all  in  its  power  to  comply  with 
the  treaty  can  not  be  doubted.  But  there  were  no  courts 
to  interpret  that  contract  and  no  executive  to  enforce  it. 
All  the  central  government  could  do  was  to  recommend, 
which  it  did  beyond  all  blame.  On  the  other  hand,  the 
British  government  was  fully  capable  of  carrying  out  its 
part  of  the  contract,  but  refrained,  perhaps  justly,  until 
the  Confederate  Government  would  carry  out  its  stipula 
tions.  As  soon  as  a  government  was  formed  in  America 
capable  of  executing  a  treaty,  the  treaty  of  1794  resulted. 

The  final  cause  of  this  treaty  is  not  found  in  any  viola 
tion  of  contract.  It  was  a  protest  by  a  part  of  the  people 
against  a  closer  alliance  with  France.  It  can  only  be  ex 
plained  by  the  conflict  in  policy  of  two  political  parties. 

Putting  aside  those  who  held  extreme  views,  there  were 
two  clearly  defined  parties  in  the  government.  One  recog 
nized  the  commercial  dependency  of  the  United  States  upon 
Great  Britain,  felt  a  racial  sympathy  with  the  people  of 
that  nation  and  an  admiration  for  the  forms  of  the  British 
constitution.  They  were  indifferent  to  the  progress  of  the 
French  Revolution  and  cast  indignant  glances  upon  the 
blase  insolence  of  the  French  government.  The  party  held 
a  firm  faith  that  the  American  people,  when  recovered  from 
the  bitterness  of  the  revolution,  would  endorse  a  more  affec- 


21]  95 

tionate  union  with  the  English  people  than  could  be  main 
tained  with  France.  Their  policy  was  for  a  close  alliance 
with  England  and  to  deal  with  the  French  government  in 
the  strictest  and  narrowest  interpretations  of  the  treaty 
obligations. 

The  other  party  sympathized  earnestly  and  naturally 
with  the  French  Republic.  Trescot  vividly  describes  their 
attitude :  They  saw  all  the  horrors  of  a  terrible  revolution, 
but  saw  them  only  as  the  unavoidable  convulsions  of  a  dying 
despotism,  so  pitied  and  palliated  what  they  could  not  jus 
tify.  They  regard  the  conduct  of  Great  Britain  as  an  in 
solent  manifestation  of  superior  force,  intended  to  mortify 
national  pride  and  injure  national  interests,  and  they  would 
gladly  have  severed  all  commercial  connection  with  the  Eng 
lish  people.  So  strong  was  this  party  that  Mr.  Pinckney 
writes :  ' '  Not  only  the  King  but  most  of  his  courtiers,  and 
(except  the  Pole)  all  the  foreign  ministers,  seem  to  consider 
the  Americans  as  united  in  principle  with  the  French. '  '31 

The  administration  had  attempted  to  follow  a  course  be 
tween  these  two  interests.  That  policy  now  threatened  great 
commercial  detriment,  as  did  a  closer  alliance  with  France. 
The  administration,  holding  for  the  British  party  and  for 
the  accomplishment  of  all  that  party  stood  for,  desired  the 
treaty.  Jay's  mission  was  the  first  step  toward  the  execu 
tion  of  its  policy.  If  it  succeeded  the  French  sympathizers 
knew  there  would  be  no  closer  alliance  with  the  allies  of  the 
revolution.  It  succeeded. 

Out  of  all  the  causes  which  occasioned  the  treaty  each 
may  be  placed  under  one  of  the  following  heads :  The  long 
standing  desire  and  the  legislative  measures  projective  of  a 
commercial  treaty;  commercial  interests  arising  from  the 
European  war;  infractions  of  the  treaty  of  178?;  and  na 
tional  political  relations. 

2.  If  the  negotiations  should  succeed  in  settling  the 
differences  which  caused  the  treaty,  the  avoidance  of  war 

81  Pinckney 's  Letter  Book,  Vol.  I,  p.  74. 


96  [22 

and  the  attainment  of  certain  commercial  privileges  would 
result.  But  the  administrators  of  the  American  govern 
ment  realized  that  the  mission  could  not  accomplish  all  that 
the  instructions  to  Jay  demanded,32  and  in  the  discussion 
concerning  the  making  of  the  treaty  the  most  attention  will 
be  paid  to  the  projects  which  failed,  leaving  the  terms  of 
agreement  for  a  discussion  under  the  treaty,  article  by 
article. 

The  atmosphere  in  which  the  negotiations  were  carried 
on  was  influenced  by  French  jealousies,  by  the  wounded 
pride  of  Great  Britain  at  American  independence,  and  by 
the  neglect  of  American  wrongs  under  the  rejoicing  and  ex 
citement  of  victories  over  the  French,  particularly  to  the 
contemporary  defeat  of  the  French  fleet  by  Lord  Howe. 
But  the  sincerity  and  candor  of  the  two  negotiators  led  to 
a  degree  of  mutual  confidence  which  greatly  facilitated 
their  labors.  A  more  intimate  acquaintance  of  the  negotia 
tors  was  permitted  by  the  long  delay  in  negotiations  owing 
to  a  change  in  the  ministry  of  England  and  on  account  of 
the  foreign  war.  Until  negotiations  were  finished  it  was 
agreed  that  affairs  should  remain  in  statu  quo. 

Bj7"  the  last  of  July,  1794,  such  a  complete  understand 
ing  of  the  wishes  of  the  two  countries  had  been  reached  in 
personal  meetings  that  written  communications  were  ex 
changed.33  Jay's  first  communication  was  relative  to  the 
captures  and  condemnations  of  American  vessels.  Gren- 
ville's  reply  upon  August  1st  insured  justice,  which  if  not 
provided  for  in  the  courts  should  be  obtained  by  govern 
mental  regulations.34  With  regard  to  all  differences  Jay 
was  constantly  supplied  with  evidence  and  suggestive  infor 
mation  by  Secretary  of  State  Randolph. 

Matters  progressed  smoothly  until  a  dispute  arose  as  to 
the  first  breaking  of  the  treaty  of  1783.  The  discussion  for 
the  most  part  was  carried  on  verbally  and  only  the  result  is 

81  Vide  Appendix  A. 

M  These  are  giren  in  full  in  State  Papers,  Foreign  Eelations,  Vol.  I. 

84  Article  VII  of  the  treaty. 


23]  97 

given  by  Jay,  ' '  on  that  point  we  could  reach  no  agreement. ' ' 
Randolph  wrote  back  immediately,  stating  such  a  question 
should  not  be  passed  without  some  decision,  but  Jay  replied 
it  was  impossible  to  come  to  any  agreement  whatever. 

The  infraction  of  the  treaty  naturally  involved  the  de 
mands  of  compensation  for  the  slaves  which  were  taken 
from  the  American  owners.  On  this  question  we  have  the 
same  brief  report  of  a  lack  of  agreement.  Jay  was  severely 
criticized  upon  this  point  as  allowing  his  personal  prejudice 
against  slavery  to  weaken  his  ardor  in  demanding  compen 
sation  in  behalf  of  slavery  interests.  This  interest  particu 
larly  affected  the  south,  and  their  loss,  which  was  very 
heavy,35  accounts  for  the  bitter  antagonism  toward  Jay  and 
the  treaty.36  The  principle  upon  which  they  demanded 
compensation  is  perfectly  clear. 

During  the  war  of  the  Revolution  many  slaves  took  ad 
vantage  of  the  opportunity  to  escape  from  their  masters  and 
enter  the  British  lines.  By  the  rules  of  international  law  in 
times  of  war,  they  became  British  property.  But  Great 
Britain,  by  an  act  of  Parliament,  had  previously  abolished 
all  slavery,  so  these  fugitives  became  free.  So  far  as  Amer 
ican  ownership  was  concerned,  they  were  British  property, 
subject  to  British  rule,  and  the  military  officials  decided 
upon  the  exportation  of  these  negroes  in  the  vessels  carrying 
away  the  British  troops  after  the  war. 

For  this  purpose  a  large  number  of  certificates  were 
printed,  stamped  by  the  United  States  Government  and 
issued  to  those  slaves  allowed  to  go  free.  When  the  time 
came  for  the  evacuation  of  the  towns  along  the  coast,  these 
certificates  were  plentifully  distributed  by  the  British  offi 
cials  among  all  the  slaves  desiring  to  embark  and  who  were 
not  included  under  the  legal  captures  of  an  enemy.  When 
the  United  States  officials  inspected  the  ships  they  found 
every  slave  provided  with  a  legal  certificate,  and  though  he 

33  Vide  pp.  68-69. 
"Vide  Appendix  C  (3). 


98  [24 

might  have  been  their  personal  property,  lately  escaped, 
they  were  powerless. 

When  an  attempt  was  made  to  recover  from  the  illegal 
action  of  the  military  officers,  Great  Britain  maintained 
that  the  slaves  embarked  were  provided  with  certificates,  a 
fact  to  which  the  United  States  government  officials  could 
testify.  Therefore  any  objection  to  the  exportation  of  slaves 
was  unjustified. 

In  support  of  this  declaration  they  used  the  argument 
that  the  treaty  was  "an  engagement  not  to  cause  any  de 
struction,  nor  to  carry  away  any  property  of  the  American 
inhabitants,  *  *  *  that  no  alteration  in  the  actual  state 
of  property  was  operated  or  intended  by  that  article ;  that 
every  slave,  like  every  horse,  which  escaped  or  strayed  from 
within  the  American  lines,  and  came  into  the  possession  of 
the  British  army,  became  by  the  laws  and  rights  of  war 
British  property ;  and  therefore  ceased  to  be  American 
property,  the  exportation  thereof  was  not  inhibited  by  the 
stipulation  in  question. ' '  The  British  government  was  per 
fectly  right  in  one  particular,  but  this  argument  does  not 
apply  to  all  the  slaves  in  question.  Jay  states :  We  could 
not  agree  concerning  the  negroes.  Was  that  reason  to  for 
feit  the  treaty? 

There  were  two  other  causes  of  the  treaty  which  were 
lost  in  the  process  of  negotiations.  The  impressment  of 
American  seamen  was  stated  by  Grenville  to  be  contrary  to 
the  desire  of  the  King.  The  complaint  was  to  be  looked 
after.  Upon  anything  further  it  was  impossible  for  the  two 
countries  to  agree,  and  the  matter  was  dropped.  Likewise, 
regarding  the  Orders  of  Council,  that  provisions  for  French 
ports  should  be  contraband,  no  agreement  could  be  reached, 
but  an  indemnity  for  past  spoliations  was  provided  for 
under  the  seventh  article. 

Upon  the  refusal  of  Great  Britain  to  satisfy  the  demands 
of  the  American  government  in  the  above  respects,  the  equal 
footing  which  had  been  maintained  between  the  two  gov- 


25]  99 

ernments  was  lost.  At  this  point  the  spirit  and  word  of 
Jay's  instructions  seem  to  have  been  forgotten.  This  can 
be  entirely  accounted  for  as  a  result  of  a  treaty  between  a 
powerful  nation  and  one  seeking  favor. 

On  August  30,  1794,  Grenville  transmitted  to  Jay  two 
projects  for  a  treaty.  The  first  regulated  various  points  in 
dispute  and  contained  eleven  articles.  The  second  estab 
lished  commercial  regulations  in  seven  articles.  Jay  re 
turned  the  projects  on  September  5  with  marginal  notes 
and  additions.  The  greatest  point  of  dispute  at  this  time 
was  Jay's  demand  for  a  compensation  arising  from  the  re 
tention  of  the  forts  in  the  north.  Grenville  acknowledged 
that  compensation  was  due  for  this  violation  of  the  treaty  of 
1783,  but  maintained  that  the  privilege  of  trading  with  the 
West  Indies  provided  for  any  claims  of  that  character.  The 
matter  was  settled  by  this  argument.  From  a  discussion  of 
Grenville 's  projects  and  further  agreements,  Jay  prepared 
a  compact  which  with  a  few  alterations  became  the  docu 
ment  finally  signed  on  the  morning  of  November  19,  1794. 

During  the  negotiation  there  was  but  one  letter  from 
Jay  which  threw  any  considerable  light  upon  the  proceed 
ings  of  the  negotiations.  Correspondence  had  been  limited 
because  of  lack  of  time,  the  great  distance  which  was  not  so 
easily  overcome  in  those  days,  and  the  dangers  arising  from 
the  capture  of  important  letters.  The  letter  which  gave  the 
government  in  America  the  first  hint  as  to  the  trend  of 
affairs  was  very  unsatisfactory.  It  was  immediately  an 
swered  by  Randolph,  and  the  only  letter  of  complaint  which 
might  have  urged  Jay  to  a  more  uncompromising  policy 
left  America  on  the  12th  of  November,  much  too  late  to 
have  any  influence  in  the  making  of  the  treaty.  Randolph 's 
two  main  objections  were  that  a  twelve  years'  treaty  with 
Europe  and  a  two  years'  treaty  with  the  West  Indies  would 
probably  be  very  unsatisfactory  to  the  people.  Further 
more,  the  commercial  project  of  Grenville  did  not  secure 
the  particular  privileges  and  exemptions  which  this  country 


100  [26 

enjoyed  by  proclamation,  compared  with  other  foreign  na 
tions. 

Pinckney  and  Jay  believed  all  had  been  attained  which 
Great  Britain  would  submit  to,  and  this  decision  is  un 
doubtedly  true.  Whatever  weaknesses  are  found  in  the 
treaty  which  grew  out  of  these  negotiations  must  be  attrib 
uted  either  to  the  fact  that  a  weak  power  always  treats 
under  disadvantages,  or  to  the  over  ardent  desire  of  the 
negotiator  for  peace,  friendship,  and  good  will  with  Great 
Britain. 

While  these  negotiations  were  going  on,  the  British 
people,  absorbed  in  their  continental  war,  paid  little  atten 
tion  to  its  advancement.  In  America  definite  information 
was  demanded  to  relieve  the  excitement  of  the  people.  Con 
gress  prolonged  its  session,  waiting  for  information  or  re 
sults.  Results  came — the  treaty  itself. 

3.  Jay's  instructions  were  divided  upon  three  great 
principles,  and  the  treaty  in  its  final  form  can  be  properly 
divided  into  articles  relating  to  these  divisions. 

The  first  ten  articles  are  permanent  and  relate  to  condi 
tions  which  were  contrary  to  the  stipulations  of  the  treaty 
of  1783.  The  remaining  articles,  excepting  the  twelfth,  are 
limited  in  their  duration  to  twelve  years,  and  are  divided 
into  those  which  relate  to  the  commercial  difficulties — 
Articles  X  to  XXV,  and  those  relating  to  citizens  and  sub 
jects  of  the  respective  countries.  The  whole  treaty  con 
sisted  of  twenty-eight  articles,  and  with  the  exception  of  a 
very  few,  each  was  subjected  to  criticism  and  opposition  on 
the  one  hand  and  argument  and  support  upon  the  other. 

Article  I  as  a  peace  stipulation  was  objected  to  by  the 
French  and  their  sympathizers.  The  title  "Treaty  of 
Amity"  was  severely  criticized  in  the  light  of  wrongs  of 
which  the  United  States  had  been  the  subject.37 

Article  II.  The  British  were  required  to  evacuate  their 
forts38  by  the  1st  of  June,  1796,  and  unless  the  settlers  de- 

37  For  a  synopsis  of   the  treaty  and  subsequent  articles  relative 
thereto,  Vide  Appendix  B. 

38  Appendix  E. 


27]  101 

clared  special  allegiance  to  Great  Britain,  they  became  citi 
zens  of  the  United  States. 

The  objection  to  this  article  was :  It  provided  no  in 
demnity  for  losses  caused  by  the  retention  of  the  forts,  but 
established  British  colonies  upon  the  weak  frontier.  The 
evacuation  of  the  posts  was  considered  entirely  too  late,  and 
in  return  for  British  depredations  upon  American  com 
merce,  this  government  invited  them  to  an  equal  participa 
tion  in  the  interior  traffic  of  the  United  States.  The  evacu 
ation  of  the  posts,  it  is  true,  was  set  at  a  late  date,  but  the 
purpose  of  a  late  evacuation  was  to  insure  against  violations 
of  the  treaty  of  1794  such  as  had  been  committed  against 
the  treaty  of  peace. 

Some  of  the  posts  were  very  important  not  only  as  har 
bors  on  the  lakes  but  as  trading  centers  for  the  inland 
country.  Detroit  was  the  largest  of  these  and  had  a  popu 
lation  of  about  three  thousand  souls.39 

Article  III  allows  the  subjects  of  Great  Britain,  the 
citizens  of  the  United  States,  and  the  Indians  of  the  terri 
tories  to  pass  freely  from  one  country  to  the  other.  Vessels 
belonging  to  the  United  States  are  not  to  be  admitted  into 
the  ports  of  His  Majesty's  said  territories,  nor  British  ves 
sels  into  rivers  of  the  United  States,  beyond  the  highest 
ports  of  entry  for  foreign  vessels  from  the  sea.  There  shall 
be  a  regular  exchange  of  goods  between  inhabitants  of  both 
countries. 

Jay  considered  this  one  of  the  most  important  articles 
in  the  treaty.40  The  advantages  were  not  reciprocal,  al 
though  very  often  so  considered.  The  advantages  the 
United  States  expected  were  an  influence  over  the  Indians 
and  a  participation  in  the  fur  trade.  The  first  was  impeded 
by  the  presence  of  a  British  population  at  the  military  posts 
and  the  second  was  defeated  by  a  monopoly  of  the  fur  trade 
because  of  the  superiority  of  British  capital  and  the  low 
duties  paid  on  goods  imported  for  that  trade  into  Canada. 

39  Grenville  Correspondence,  Vol.  II,  p.  611. 

40  Letters  of  November  21,  1794.    State  Papers,  Foreign  Kelations, 


102  [28 

Article  IV  and  V  stipulated  for  boundary  lines  in  the 
northwest  and  northeast,  but  any  boundary  lines  were  ob 
jected  to,  otherwise  than  the  sea. 

Article  VI  was  highly  objectionable.  It  provided  for 
the  payment  of  debts  due  the  British  creditors  before  the 
peace  of  1783,  and  was  considered  to  be  paying  a  debt  which 
was  never  contracted.  There  was  no  limit  on  the  amount 
due,  and  so  was  open  to  every  chance  of  fraud.  If  there 
were  any  debts,  said  the  opposition,  they  should  be  remedied 
by  judicial  procedure  or  a  compromise  between  the  parties. 
These  objections  were  not  without  foundation  and  several 
years  passed  before  an  explanatory  article  brought  the  dis 
pute  to  a  conclusion.41  But  Jay  informed  Randolph  that 
this  article  was  a  sine  qua  non*2 

Article  VII,  providing  for  American  claims,  was  ob 
jected  to  as  not  being  complete  and  sufficient,  although  the 
results  thoroughly  discredit  such  a  criticism.  It  must  have 
been  a  delicate  matter  to  obtain  such  a  concession  from 
Great  Britain,  as  it  practically  amounted  to  an  admission 
that  the  Orders  of  Council  were  in  violation  of  neutrality. 
The  words  "irregular"  and  "illegal"  were  skillfully 
adopted  to  avoid  any  unnecessary  wounds  upon  British 
pride.  Subsequent  events  prove  this  one  of  the  most  im 
portant  if  not  the  most  important  article  in  the  treaty  of 
1794. 

Article  VIII  provides  for  the  commissions  under  the 
sixth  and  seven  articles,  and  is  one  of  the  few  against  which 
there  was  no  direct  objection. 

Article  IX.  It  is  agreed  that  British  subjects  holding 
lands  in  the  United  States  and  Americans  holding  lands  in 
Great  Britain  shall  continue  to  possess  the  same  and  all 
rights  relating  thereto ;  that  neither  subjects  or  citizens  shall 
be  regarded  as  aliens. 


41  Vide  p.  57. 

"Letter  of  November  19,  1794.    State  Papers,  Foreign  Eolations, 
Vol.  I.    Vide  Appendix  A  (3). 


29]  103 

The  article  was  passed  uncensured  with  the  exception  of 
some  newspaper  abuse. 

Article  X  stipulates  that  there  shall  be  no  confiscation 
of  debts  in  case  of  war  between  the  parties.  This  was  ob 
jected  to  on  the  one  hand,  because  the  right  of  confiscation 
may  contribute  to  preserve  the  peace  of  the  country  and 
protect  the  rights  and  property  of  the  citizens.  On  the 
other  hand,  it  was  declared  to  be  an  article  of  extreme  com 
plexity,  resembling  reciprocity,  but  in  reality  containing  no 
reciprocity  at  all.  Great  Britain  gained  all  the  advantage 
in  that  she  had  larger  funds  and  private  interests  in  the 
United  States  than  Americans  had  in  England.  However 
that  may  be,  the  clause  was  obviously  just,  and  was,  in  addi 
tion,  a  novelty  in  international  diplomacy  and  a  distinct 
advancement  in  civilization.  Notwithstanding  the  advan 
tage  England  may  have  received  at  the  time,  the  principle 
here  established  saved  millions  for  the  United  States  in  the 
war  of  1812,  when  that  government  was  on  the  creditor  list 
and  England  upon  the  debtor. 

This  closes  the  division  of  permanent  articles,  from 
which  more  was  gained  than  from  the  temporary  stipula 
tions.  This  is  accounted  for  by  the  precedents  of  the  treaty 
of  1783,  upon  which  the  American  negotiator  could  base 
such  claims  as  the  evacuation  of  the  forts,  compensation  for 
spoliation  of  navigation,  and  the  settlement  of  the  boundary 
line.  But  in  the  commercial  treaty  it  was  more  a  matter  of 
what  one  nation  was  willing  to  give  and  the  other  to  receive. 
There  had  been  no  precedent  established  by  a  commercial 
treaty  before  this  date. 

According  to  many  economic  notions  of  the  day,  Eng 
land  had  little  to  gain  and  much  to  lose  by  a  commercial 
compact  with  America.  This  part  of  the  treaty  was  limited 
in  duration  because  of  the  rapid  growth  of  our  commercial 
interests.43  Jay  wrote  to  Washington  that  ' '  the  commercial 
part  of  the  treaty  was  of  short  duration  as  things  more 
auspicious  to  negotiate  upon  will  probably  arise. ' ' 
43  Vide  Part  III,  Section  3. 


104  [30 

Although  the  permanent  part  of  the  treaty  had  been 
subject  to  severe  criticism,  it  was  the  commercial  articles 
which  excited  most  hostility. 

Article  XI  guaranteed  perfect  liberty  of  navigation  and 
commerce  among  people  of  both  countries  under  the  follow 
ing  articles.  This  was  subject  to  no  further  criticism  than 
that  it  led  up  to  the  rest  of  the  treaty. 

Article  XII,  which  was  to  last  for  two  years,  pretended 
to  regulate  trade  between  the  United  States  and  the  West 
Indies.  From  first  to  last,  this  article  met  with  criticism 
and  opposition.  The  Senate  refused  to  ratify  it,  and  the 
subject  of  the  article  was  left  over  for  future  negotiations. 
As  unsatisfactory  as  the  article  may  have  appeared  to  Jay, 
his  instructions  precluded  him  from  making  any  commercial 
treaty  which  did  not  include  the  West  India  trade.  If  no 
commercial  treaty  had  been  negotiated,  then  the  advantages 
of  the  European  and  East  India  trade  would  have  been  lost. 

The  British  West  India  trade  had  been  a  source  of  wealth 
and  power  to  the  colonies.  For  that  reason  the  Marquis 
of  Buckingham  suggested  to  Lord  Grenville  that  the  West 
India  trade  should  be  made  a  compensation  for  the  reten 
tion  of  the  posts.44  The  Revolution  and  English  legislation 
had  deprived  the  colonies  of  its  benefits,  and  they  were 
anxious  to  accept  the  first  opportunity  to  regain  it.  Be 
cause  of  the  well  known  exclusive  terms  of  England's 
colonial  policy,  President  Washington  was  sensible  of  the 
difficulties  which  would  confront  Jay.  He  therefore  in 
structed  Jay  to  ask  for  trade  in  vessels  of  certain  definite 
burdens.  The  limit  of  seventy  tons  was  then  imposed  upon 
ships  trading  with  the  islands,  and  such  a  limitation  was 
criticized  by  James  Madison  as  a  trade  ' '  in  canoes. ' '  Jay  '& 
idea  of  the  article  was:  "It  breaks  the  ice — that  is,  it 
breaks  in  upon  the  navigation  act."  The  limitations  upon 
tonnage  and  ports  of  trade  seemed  to  the  Senate  to  be  an 
encroachment  by  Great  Britain  upon  the  regulation  of 
American  commerce. 


44  Grenville  Correspondence,  Vol.  II,  p.  611. 


31]  105 

Article  XIII  provides  for  the  trade  with  the  British 
territories  of  the  East  Indies.  This  article  was  said  to  be 
worth  the  whole  treaty,  but  in  reality,  as  American  mer 
chants  missed  all  coast  trade  and  had  to  come  directly  to 
America  with  their  cargoes,  the  benefits  were  decidedly  lim 
ited.  Keexportation  was  required  before  full  benefit  could 
be  derived,  thus  hampering  our  conditions  more  than  they 
were  at  first.  However,  it  was  a  great  innovation  in  Eng 
land's  navigation  laws  and  one  she  refused  in  subsequent 
negotiations.45 

Articles  XIV  and  XV  guarantee  reciprocal  commerce 
and  navigation  between  the  United  States  and  Great  Brit 
ain.  There  was  no  objection  to  these  otherwise  than  the 
including  of  "the  most  favored  nation"  clause,  which  the 
French  party  took  as  a  violation  of  their  treaty  with  the 
United  States.46 

Article  XVI  relates  to  the  appointment  of  consuls  for 
the  protection  of  trade.  No  objection. 

Article  XVII  allows  the  seizure  and  detention  of  a  vessel 
with  enemies'  goods.  Only  such  goods  could  be  taken  and 
the  vessel  allowed  to  proceed.  This  was  another  point  at 
which  the  French  sympathizers  took  particular  offense.  The 
United  States'  trade  was  particularly  strong  with  France, 
and  it  was  objected  that  this  article  legalized  the  right  of 
search,  which  was  working  such  ruin  to  American  commer 
cial  interests.  "The  treaty  so  sanctioned  a  new  and  inad 
missible  rule  of  public  law. ' ' 

Article  XVIII  enumerates  the  articles  which  are  contra 
band  of  war,  and  declares  that,  when  provisions  are  so  con 
sidered,  the  owner  shall  be  made  speedy  indemnification. 
The  French  party  again  put  in  strong  objections,  especially 
on  the  stipulations  that  provisions  may  be  declared  contra 
band.  At  this  time  the  principle  that  provisions  could  be 
treated  as  contraband  of  war  was  uniformly  denied  by  the 


41  Vide  pp.  65-67. 

49  Vide  Part  III,  Section  4. 


106  [32 

American  government.  It  was  denied  by  Jefferson  in  his 
letters47  to  Pinckney,  and  opposed  by  President  Washing 
ton.48  It  was  objected  to  on  the  part  of  the  merchants  as 
including  more  goods  in  the  contraband  list  than  precedent 
had  established.  The  reason  for  this  obnoxious  article  is 
found  in  the  unfortunate  time  in  which  the  treaty  was  nego 
tiated.  Great  Britain  was  involved  in  a  war  with  France 
and  naturally  would  not  admit  principles  which  would  im 
peach  the  propriety  of  her  conduct  in  seizing  provisions 
bound  for  that  country.  Jay's  only  remedy  for  it  was  that 
a  previous  article,  Article  VII,  had  secured  compensation 
for  seizures,  and  this  precedent  might  be  continued. 

Article  XIX  provides  for  the  security  of  respective  sub 
jects  and  citizens  from  privateers  and  men-of-war.  No 
objections. 

Article  XX  relates  to  the  destruction  of  pirates.  There 
was  no  objection  stated. 

Article  XXI  stipulates  that  the  subjects  and  citizens  of 
the  two  nations  should  commit  no  acts  of  hostility  against 
each  other  and  should  accept  no  commissions  from  foreign 
states  or  princes  to  commit  hostilities.  This  was  objected  to 
by  the  American  sympathizers  with  the  French  Republic. 
It  prohibited  them  from  assisting  that  nation  in  its  war  with 
Great  Britain.  The  justice  in  the  article  appeared  only 
when  it  was  ascertained  that  such  a  stipulation  was  con 
tained  in  our  treaty  with  Holland. 

Article  XXII  prohibited  either  party  from  authorizing 
an  act  of  reprisal  against  the  other  on  complaint  of  dam 
ages  until  a  statement  of  proof  had  been  presented  to  the 
party  supposed  to  commit  the  injury.  This  article  was  op 
posed  by  all  the  enemies  of  England  who  were  favorable  to 
the  policy  of  sequestration  and  confiscation. 

Article  XXIII  relates  to  the  treatment  of  ships,  officers, 
and  crews  in  the  ports  of  the  contracting  powers. 


47  Wait,  State  Papers,  Vol.  I,  pp.  218,  324,  372,  408. 

48  Marshall's  "Life  of  Washington,"  Vol.  V,  p.  619. 


33]  107 

Article  XXIV  provides  that  the  privateers  of  nations  at 
enmity  with  Great  Britain  and  the  United  States  shall  not 
arm  their  vessels  in  the  ports  of  one  for  hostile  purposes 
against  the  other,  or  sell  what  they  have  captured  from  one 
nation  in  the  ports  of  the  other. 

Article  XXV  makes  it  lawful  for  privateers  or  ships  of 
war  to  take  such  vessels  as  they  have  captured  into  the 
ports  of  either  party  and  be  there  subject  to  certain  rights 
and  privileges.  No  merchant  vessel  was  to  be  taken  within 
cannon  shot  of  the  coast  or  full  satisfaction  was  guaranteed. 

Concerning  the  last  three  articles  there  were  many  ob 
jections  bearing  upon  the  too  friendly  relations  into  which 
they  led  the  United  States  with  Great  Britain  and  upon  the 
facilitation  of  privateering.  This,  in  the  absence  of  a  navy, 
was  argued  to  be  our  only  defence  against  Great  Britain. 
After  it  was  shown  that  these  provisos  were  copies  of  sim 
ilar  articles  in  the  French  compact,  the  objections  were  con 
tinued  only  by  the  radicals  of  the  French  party. 

Article  XXVI.  In  times  of  war  merchants  and  citizens 
of  one  country  are  permitted  to  reside  in  the  territory  of 
the  other  and  continue  their  trade.  No  objections. 

Article  XXVII  provides  for  the  return  of  all  persons 
fleeing  from  justice  to  either  country.  A  great  cry  was  set 
up  against  this  article  as  "a  cruel  stab  at  the  sovereignty 
of  the  people"  by  those  fugitives  from  England  and  Ire 
land  who,  like  the  colonists  in  Australia,  were  outlaws  for 
petty  offences,  such  as  poaching,  as  well  as  for  more  serious 
crimes.  This  article  applied  more  particularly  to  murderers 
and  forgers. 

Article  XXVIII.  The  last  article  provides  that  the  first 
ten  shall  be  permanent,  and  the  remaining  articles,  the 
twelfth  excepted,  should  be  limited  to  twelve  years.  No 
objections.  This  last  article  was  agreed  upon  as  an  attempt 
to  overcome  the  weaknesses  of  the  treaty.  Jay  wrote  to 
Washington49  that  when  the  treaty  had  been  in  effect  some 

49  September  3,  1795,  State  Papers,  Foreign  Eelations,  Vol.  I.     Cf. 
Jay 's  ' '  Correspondence  and  Public  Papers  of  John  Jay, ' '  Vol.  II. 


108  [34 

time  defects  would  appear  and  further  arrangements  would 
be  necessary.  This  article  would  make  allowances  for  the 
settlement  of  questions  on  impressment  and  the  contraband 
character  of  various  goods. 

In  order  to  form  a  just  estimate  of  the  treaty  with  Great 
Britain,  the  political  state  of  Europe  and  America  must  be 
kept  in  mind.50  Any  treaty  with  England,  it  was  obvious, 
could  be  negotiated  only  at  a  great  disadvantage,  but  it  was 
unquestionably  worth  the  trial. 

In  general,  those  complaints  which  were  directed  against 
the  treaty  were  most  bitter  upon  what  the  treaty  did  not 
contain  rather  than  on  the  articles  it  did. 

The  stipulations  it  did  not  contain  were  those  upon 
which  the  negotiators  could  not  agree,  and  have  been  pre 
viously  discussed.51  The  omission  of  an  article  forbidding 
impressment  brought  down  the  opposition  of  the  merchant 
class.  The  lack  of  a  compensation  for  negroes  raised  a 
strong  party  unfavorable  to  the  treaty  in  the  south.  The 
jealous  stipulations  for  West  India  trade  were  opposed  by 
the  commercial  class  and  finally  left  unratified.  The  recog 
nition  of  a  right  of  search  was  also  a  point  against  the 
interests  of  the  above  parties.  But  the  rights  of  search  and 
the  impressment  of  American  seamen  were  not  questions  of 
diplomacy;  their  answer  was  found  in  the  War  of  1812. 
The  War  of  1812  failed  to  eliminate  impressment  entirely. 
Mr.  Webster's  emphatic  letter  to  Lord  Ashburton  alone 
removed  that  disturbing  element.  It  was  not  until  October, 
1830,  that  the  gates  of  the  British  West  India  trade  were 
opened  to  American  vessels. 

The  main  weaknesses  were  summed  up  by  the  party  in 
opposition  in  Congress.  The  treaty,  as  a  whole,  did  not 
prohibit  interference  in  our  international  relations,  but 
fixed  a  foundation  for  further  British  influence.  It  re 
stricted  some  of  the  most  important  rights  of  international 


00  Vide  Introduction. 

51  Ante  Part  II,  Section  2. 


35]  109 

sovereignty  and  hazarded  the  neutrality  of  the  United 
States-  The  whole  treaty  was  unequal  and  unjust  in  rela 
tion  to  the  spirit  of  the  treaty  of  1783. 

Popularly,  it  was  argued  that  Jay  was  a  timid  negoti 
ator,  and  his  unfriendly  feeling  for  France  and  sympathy 
for  Great  Britain  had  led  him  into  a  betrayal  of  his  coun 
try  '&  interests. 

A  defence  of  the  treaty  upon  principle  would  undoubt 
edly  be  very  weak,  whatever  might  be  said  upon  the  score 
of  policy.  The  dictatorial  attitude  of  England  is  quite  ap 
parent  and  the  commercial  interests  are  decidedly  in  favor 
of  that  nation.  Lyman  states  that  "as  a  mere  trial  of  diplo 
matic  skill  this  treaty  is  a  confessed  failure,  for  with  a  soli 
tary  exception,  the  tardy  evacuation  of  the  posts,  its  ratifi 
cation  abandoned  every  position  which  the  government  had 
assumed  in  preliminary  discussions  and  its  formal  diplo 
matic  instructions."  But  this  criticism  will  be  found  to 
overreach  a  true  estimation  of  conditions.  Jay  was  com 
pelled  to  accept  or  reject  whatever  the  British  negotiator 
had  to  offer,  and  there  is  very  probably  nothing  in  the  regu 
lation  of  the  national  interests  which  will  excite  any  pride 
in  the  American  people.  However,  there  was  no  small 
amount  of  diplomacy.  The  first  success  came  in  obtaining 
any  recognition  whatever  from  Great  Britain.  The  second 
step  was  not  so  much  concerned  with  reciprocal  relations — 
offering  valuable  concessions  for  valuable  concessions — for 
the  United  States  had  nothing  of  such  vital  importance  to 
offer  Great  Britain  but  what  that  country  was  able  to  take 
for  herself.  The  diplomacy  lay  in  drawing  from  England 
the  greatest  concessions  which  she  would  possibly  admit. 
Mr.  Pinckney,  the  minister  to  England  during  this  period 
of  negotiation,  may  be  considered  as  a  very  competent  judi.ce 
of  the  result.  "As  little  has  been  conceded  by  Mr.  Jay  and 
as  much  obtained  by  the  United  States  as,  all  the  circum 
stances  considered,  could  be  expected."52  It  was  never 

52  Correspondence  on  the  Treaty,  American  State  Papers,  Foreign 
Eelations,  Vol.  I. 


. 


110  [36 

maintained  by  the  most  ardent  supporters  of  the  treaty  that 
it  was  without  faults,  but  rather  that  these  weaknesses  were 
due  to  the  inequality  in  the  commercial  power  of  the  two 
nations.  Jay's  judgment  is  judicially  characteristic  and 
very  fair  in  this  regard.  "My  opinion  of  the  treaty  is  ap 
parent  from  my  having  signed  it.  I  have  no  reason  to  be 
lieve  or  conjecture  that  one  more  favorable  to  us  is  obtain 
able.53  He  also  recognized  that  many  questions  were  yet 
unsettled.  '  *  Perhaps  it  is  not  so  much  to  be  regretted  that 
all  our  differences  are  merged  in  this  treaty  without  having 
been  decided."  Possession  is  proverbially  nine  points  of 
the  law,  and  what  England  surrendered  was  virtually  her 
own  even  to  the  possession  of  the  military  posts.  The  Amer 
ican  flag  waved  over  the  ocean  by  her  suffrance  alone.  In 
later  years  its  right  to  wave  there  could  be  and  was  amply 
proved. 

A  modern  criticism  holds  that  Jay's  treaty  is  "as  great 
an  American  diplomatic  victory  as  was  the  wringing  from 
the  Dutch  Republic  the  recognition  of  American  independ 
ence.  "54  Certainly  no  treaty  ever  negotiated  by  America 
has  been  so  heartily  condemned  or  has  obtained  more  bene 
fits  in  comparison  with  its  unpopularity.  The  benefits  will 
be  more  thoroughly  discussed  later.  A  summary  will,  how 
ever,  be  proper  here.  The  treaty  prevented  an  inopportune 
war;  obviated  the  necessity  of  a  closer  allegiance  with 
France;  fixed  neutrality  as  a  settled  policy  in  a  contest 
which  was  to  involve  every  nation  in  Europe;  time  was 
allowed  for  the  American  union  to  become  more  strong  and 
the  government  to  run  smoothly;  over  two  million  dollars 
were  granted  to  American  merchants  who  had  suffered  dur 
ing  hostilities,  and  Great  Britain  here  acknowledged  the  in 
justice  of  her  proceedings  and  waived  the  attempt  to  inject 
the  rule  of  1756  into  international  law ;  the  military  posts 
were  given  up  at  the  appointed  time,  which  was  more  than 
the  treaty  of  1783  could  secure;  and  for  the  first  time  in 


M  American  State  Papers,  Foreign  Relations,  Vol.  I,  November  19, 
1794.     Vide  Appendix  A  (3). 

54  Annual  Report  of  the  American  Historical  Association,  1898. 


S7]  111 

American  history  a  provision  was  made  for  the  extradition 
of  criminals.  A  comparison  with  later  negotiations  showed 
that  many  stipulations  of  this  "execrable"  treaty  of  1794 
were  adopted  in  later  compacts. 

But  in  addition  to  all  these  benefits,  there  is  a  niggardly 
justification  of  the  treaty  in  the  fact  that  it  was  an  alterna 
tive  for  war.  There  was  a  haughty  indifference  on  the  part 
of  Great  Britain  to  the  unsettled  problems  which  vexed  the 
United  States.  There  was  a  desire  to  injure  American  in 
terests,  to  neglect  American  remonstrances,  and  provoke 
delays  for  settlement  which  raised  popular  feeling  so 
strongly  against  Great  Britain  that  it  insured  hostilities. 
In  the  face  of  French  sympathies,  such  feeling  could  not 
long  be  suppressed.  Contemporary  statesmen  say  that  the 
United  States,  in  case  of  war,  could  barely  have  sustained 
honor  and  existence.55  At  least,  war  would  have  injured 
American  commerce,  excited  strong  sectional  discontent, 
checked  the  spirit  of  commercial  and  maritime  enterprise 
and  strengthened  rather  than  removed  the  cause  of  ill- 
feeling  between  the  two  nations. 

As  a  matter  of  fact,  the  treaty  worked  more  good  in 
practice  than  was  believed  possible  even  by  its  advocates. 
Washington  debated  its  ratification  long  and  seriously,  but 
later  declared :  '  *  The  treaty  has  secured  everything  desir 
able  in  respect  to  our  foreign  relations,  toward  confirming 
their  prosperity."56 

4.  A  discussion  of  the  treaty  has  been  given  at  this 
point  that  there  might  be  a  better  understanding  of  the 
problems  which  were  presented  at  the  time  of  its  ratification. 

The  contract  resulting  from  Jay's  mission  was  handed 
to  the  Secretary  of  State,  Edmond  Randolph,  upon  the  7th 
of  March,  1795,  and  was  transmitted  to  the  Senate  in  special 
session  on  June  8  of  the  same  year.  Its  ratification  was 
advised  by  that  body  upon  June  24.  Nothing  concerning 

55Lyman,  "  Diplomacy  of  the  United  States, "  p.  127. 
50  Farewell  address,  September  17,  1796.    Eichardson,  « '  A  Compila 
tion  of  the  Messages  and  Papers  of  the  Presidents,"  Vol.  I. 


112  [38 

the  treaty  was  definitely  known  until  its  publication  in  the 
American  Daily  Advertiser  on  July  2.  But  various  conjec 
tures  were  made,  and  these  untrue  conjectures  were  really 
the  cause  of  much  poorly  reasoned  and  premature  oppo 
sition. 

James  Madison  was  in  a  position  to  learn  as  much  of  the 
treaty  as  easily  as  any  one.  On  November  30,  1794,  he 
writes:  "All  that  is  given  out  from  Jay's  negotiations  is 
in  favor  of  some  advantageous  results."57  It  was  not  until 
March  22,  1795,  that  he  was  able  to  write  with  any  assur 
ance  upon  the  contents  of  the  treaty.  From  that  date, 
letters  and  early  criticism  spread  a  general  and,  for  the 
most  part,  an  unfavorable  knowledge  of  the  treaty.  Ac 
cordingly,  when  it  came  before  the  Senate  for  discussion 
every  influence  .was  brought  to  bear  upon  that  seclusive 
body. 

The  Senate  met  and  immediately  passed  a  motion  that 
all  work  upon  the  treaty  should  be  done  behind  closed 
doors.  Therefore,  no  record  is  left  of  the  proceedings  of  the 
Senate  upon  this  document.  This  policy  provoked  no  small 
amount  of  criticism,  and  every  effort  was  made  by  the  party 
in  opposition  to  induce  or  intimidate  the  Senate  into  public 
debates.  One  of  the  contemporary  republican  writers 
states:  "The  conduct  of  the  Senate  respecting  the  treaty 
is  truly  extraordinary.  Upon  what  constitutionality  or  re 
publican  principle  they  can  justify  secrecy,  in  relation  to 
a  law,  which  shall  rival  the  darkness  of  a  conclave  or  a 
seraglio,  is  extremely  difficult  to  conceive."  All  this  was 
for  the  very  apparent  purpose  of  publishing  the  inflamma 
tory  speeches  of  the  opposition. 

During  the  process  of  debate,  Burr  of  Virginia  proposed 
that  all  considerations  of  the  treaty  be  postponed;  other 
Senators  proposed  that  a  part  should  be  accepted,  a  part 
revised,  and  the  rest  of  it  expunged ;  still  others  moved  that 


57  Writings  of  James  Madison,  Vol.   II,  Letters  to   Thomas  Jef 
ferson. 


39]  113 

the  President  be  advised  to  negotiate  further.  Senator 
Tazewell  finally  moved  that  the  treaty  "be  not  signed." 
The  motion  was  voted  down,  and  the  Senate  by  a  strict 
party  vote  recommended  the  President  to  attach  his  signa 
ture.  The  vote  as  it  finally  stood  was  an  exact  two-thirds 
majority,  which  is  necessary  for  a  constitutional  ratification 
of  a  treaty.  The  vote  stood  twenty  yeas  and  ten  nays.  The 
ratification  was  conditional.  It  suspended  that  part  of  the 
twelfth  article58  which  related  to  West  India  trade,  the 
principal  objection  being  that  it  prohibited  the  exportation 
of  certain  products — sugar,  molasses,  cocoa,  coffee,  and 
cotton.  In  its  place  the  Senate  suggested  another  article. 

The  discussion  of  the  treaty  in  the  Senate  was  probably 
very  thorough.  Thirty-three  copies  of  the  treaty  were 
printed  under  an  oath  of  secrecy  and  these  distributed 
among  the  Senators  for  individual  study.  The  Senate  was 
not  satisfied  with  the  document  under  debate.  In  the  for 
mal  notice  to  the  President,  recommending  his  signature,  it 
was  added:  "And  the  Senate  recommend  to  the  President 
to  proceed  without  delay  to  further  friendly  negotiations 
with  His  Majesty  on  the  subject  of  said  trade,  and  of  the 
terms  and  conditions  in  question." 

This  peculiar  ratification  of  the  Senate  placed  the  Presi 
dent  in  an  unprecedented  position.  In  the  provisional 
order  of  that  body,  he  was  asked  to  ratify  an  article  which 
had  never  been  laid  before  the  Senate,  and  in  all  events  he 
was  advised  to  ratify  a  treaty  not  agreed  upon  by  the  Eng 
lish  negotiator.  The  President  believed  that  the  proceedings 
of  the  Senate  fell  clearly  within  the  meaning  of  the  Consti 
tution,59  and  after  favorable  advice  from  his  Cabinet  and  a 

58  By  the  suspension  of  this  article  and  the  ratification  by  the  Brit 
ish  Parliament  with  this  amendment,  a  precedent  was  established  of 
ratifying  treaties  with  the  exception  of  one  or  more  articles.     When 
Monroe  and  Pinckney  were  negotiating  in  London  on  June  3,  1804, 
Lord  Hawkesbury  censured  the  practice  of  ratifying  parts  of  a  treaty 
as  "new,  unauthorized,  and  not  to  be  sanctioned."     The  treaty  of 
1794  was  brought  up  as  a  precedent.    State  Papers,  Foreign  Eelations, 
Vol.  Ill,  p.  93.     Cf.  < '  Porcupine  Works, ' '  Vol.  II,  p.  271. 

59  Article  II,  Section  2,  paragraph  2. 


114  [40 

"full  and  mature  deliberation,"  he  attached  his  signature. 
He  hesitated  in  his  action  but  once,  when  it  was  reported 
that  the  British  Council  had  given  orders  to  seize  all  pro 
vision  ships.  The  report  was  unofficial  and  false. 

The  treaty  was  subjected  to  a  long  debate  in  the  cabinet, 
with  the  result  that,  excepting  one  member,60  all  concurred 
in  its  ratification.  Through  all  the  tumult  which  popular 
discussion  of  the  treaty  caused  and  in  spite  of  the  attempts 
to  intimidate  the  President  into  rejecting  it,  Washington  re 
mained  calm  and  collected.  He  gave  the  treaty  deliberate 
and  unbiased  consideration,  he  believed  a  better  one  could 
not  at  the  time  be  obtained  and  signed  it :  "  although  it  does 
not  rise  to  our  wishes,  yet  it  appears  to  me  calculated  to  pro 
cure  to  the  United  States  such  advantages  as  entitle  it  to 
our  acceptance."61 

As  Mr.  Jay  had  returned  to  America  and  Mr.  Pinclmey 
was  absent  in  Madrid  upon  a  special  mission,  ratifications 
were  exchanged  on  the  28th  of  October,  1795,  between  Lord 
Grenville  and  William  Allen  Deas,  the  Secretary  of  the 
United  States  Legation.  The  British  government  made  no 
objection  to  the  suspension  of  the  twelfth  article. 

On  the  1st  of  March,  1796,  the  President  communicated 
to.  Congress  for  their  information  and  vote,  the  necessary 
appropriation  to  put  it  into  effect.  Upon  March  2,  Edward 
Livingston  of  New  York  made  a  motion  requesting  the 
President  to  lay  before  the  House  all  papers  relating  to 
Jay's  treaty.  The  Republicans  favored  this  attitude,  and 
as  they  were  in  the  majority  the  motion  carried  by  a  vote 
of  sixty-two  against  thirty-seven  after  a  debate  lasting  from 
March  7  to  the  24th.  The  instructions  to  Jay  had  been 
published  and  were  generally  known,  but  Washington,  after 

60  Secretary  of  State  Eandolph.     Vide  Eandolph  's  ' '  Vindication  of 
Randolph's  Resignation."     He  claimed  the  British  right  of  search 
and  impressment  was  conceded  by  America,  and  therefore  probably  re 
vealed  enough  of  the  treaty  to  cause  opposition.    Lyman,  ' '  The  Diplo 
macy  of  the  United  States." 

61  A  letter  of  Washington.    Reports  of  the  American  Historical  As 
sociation,  1901,  Vol.  I. 


41]  115 

consulting  his  cabinet,  refused62  to  grant  the  request  of  the 
House.  The  grounds  for  his  refusal  were :  The  dangerous 
precedent  which  would  be  established  in  that  the  disclosure 
of  foreign  affairs  was  often  impolitic,  and  that  dangerous 
results  might  be  expected  by  allowing  the  House  any  voice 
in  the  powers  of  treaty  making.  Such  procedure  on  the  part 
of  the  House  was  not  provided  for  in  the  constitution  and 
was  contrary  to  the  purpose  of  the  Constitutional  Conven 
tion,  which  had  upheld  the  principle  of  equal  representation 
in  international  relations. 

The  House  considered  Washington 's  reply  and  the  right 
to  demand  the  papers  was  reaffirmed.  By  some  it  was  main 
tained  that  the  House  was  vested  with  discretionary  powers 
to  carry  a  treaty  into  effect  or  to  refuse  to  do  so  by  failure  to 
vote  necessary  supplies.  By  the  other  party  it  was  claimed 
that  the  treaty-making  power  was  vested  exclusively  in  the 
President  and  the  Senate,  that  the  House  must  acquiesce  in 
their  decision  and  vote  the  necessary  funds  to  put  the  com- 
paut  into  execution. 

The  debate  was  not  so  much  upon  the  treaty-making 
right  of  the  House  as  their  right  to  refuse  appropriations  to 
carry  the  treaty  into  effect.  This  is  shown  by  the  motion 
passed  upon  April  7,  which  declared,  first,  that  the  House 
had  no  claim  as  an  agent  in  making  treaties,  but,  second,  as 
a  part  of  Congress  it  had  a  right  to  deliberate  on  any  treaty 
carrying  into  effect  regulations  on  subjects  given  by  the 
constitution  to  the  control  of  Congress.  The  other  argu 
ment  was  that  the  Constitution  had  purposely  excluded  the 
House  from  all  participation  in  the  making  of  treaties. 
This  came  from  the  Federalists,  or  Strict  Constructionists, 
and  many  of  its  members  had  participated  in  the  Constitu 
tional  Convention. 

From  this  point,  the  debate  drifted  into  the  merits  and 

faults  of  Jay's  treaty,  and  on  April  15  the  debate  centered 

upon  a  federalist  resolution  to  put  the  treaty  into  effect. 

02  March  30,  1796.     State  Papers,  Foreign  Relations,  Vol.  I,  p.  550. 


116  [42 

There  were  two  great  questions  constantly  before  the  House  : 
First,  the  constitutionality  of  their  discretionary  power  in 
voting  appropriations  for  a  treaty;  second,  the  question  of 
voting  an  appropriation  to  put  the  treaty  into  effect.  De 
bates  upon  these  questions  occupied  the  entire  attention  of 
Congress. 

James  Madison  was  leader  of  the  opposition  and  spoke 
very  strongly  against  voting  ninety  thousand  dollars  of  the 
people's  money,  not  counting  the  British  debts  which  were 
involved,  to  put  a  treaty  so  unfavorable  into  effect.  This 
same  argument  has  been  used  in  every  acquisition  of  terri 
tory  by  the  United  States :  in  the  Louisiana  treaty  of  1803, 
the  Gadsden  purchase  of  1854,  and  the  Alaskan  purchase 
of  1867.  Twenty  million  dollars  have  since  been  paid  for  a 
group  of  islands.  Madison  also  argued  that  the  treasury 
was  empty,  and  the  only  resource  was  borrowing,  which  was 
extremely  difficult  at  the  time.  The  commercial  disadvan 
tages  were  dwelt  upon,  and  in  fact  all  the  objections  which 
have  been  previously  mentioned  were  urged  in  the  most 
emphatic  manner  possible. 

The  Connecticut  representatives,  Mr.  Swift  and  more 
especially  Mr.  Hillhouse,  made  the  strongest  speeches  in 
favor  of  voting  the  necessary  appropriation.  They  dwelt 
particularly  upon  the  lack  of  foundation  for  the  results  the 
opposition  had  predicted  in  case  the  treaty  was  adopted  and 
spoke  at  length  on  the  unsettled  conditions  which  would 
exist  and  the  war  which  would  arise  if  the  compact  was  not 
adopted. 

On  April  29  the  question  of  voting  the  appropriation 
came  before  the  House  as  a  Committee  of  the  Whole.  The 
vote  cast  was  forty-nine  to  forty-nine,  but  the  speaker, 
though  opposing,  voted  for  the  treaty  to  give  further  oppor 
tunity  to  consider  it. 

This  vote  on  the  part  of  the  speaker,  Mr.  Jonathan 
Dayton,  of  New  Jersey,  is  one  of  tremendous  importance. 
With  perfect  honor  on  his  part  he  could  have  voted  against 


43]  117 

the  treaty,  caused  a  deadlock  in  Congress,  refused  the  means 
of  executing  that  contract,  put  the  United  States  govern 
ment  in  a  very  embarrassing  position  with  Great  Britain 
and  wrought  disastrous  results  on  the  treaty  making  power 
of  the  President  and  Senate.  As  it  was,  the  two  main  influ 
ences  which  promoted  the  success  of  the  treaty  were  allowed 
to  operate.  By  prolonging  the  discussion  in  Congress  an 
opportunity  was  given  to  allow  the  mercantile  and  conserv 
ative  voice  of  the  country  to  be  heard.  Furthermore,  the 
necessary  time  was  given  for  the  reaction  which  must  in 
evitably  follow  such  an  outburst  of  popular  feeling.  The 
second  influence  declaring  for  the  treaty  was  the  speech  of 
Fisher  Ames,  the  Representative  from  Massachusetts.  Mr. 
Ames  was  a  member  of  Congress  during  the  administration 
of  Washington.  He  was  an  ardent  Federalist  and  one  of 
the  leaders  of  the  House,  where  he  was  considered  an 
extemporaneous  but  finished  orator  of  great  persuasive 
power.  This  speech  was  the  culmination  of  his  official 
career.  He  had  been  very  ill  during  the  entire  session  of 
Congress  and  a  few  days  previous  was  thought  to  be  on  his 
death-bed.  The  permission  for  a  further  discussion  came  at 
a  time  when  he  was  able  to  reach  the  House,  and  after  Mr. 
Preston  had  spoken,  he  staggered  from  his  seat  and  ad 
dressed  the  chair,  saying  he  hoped  his  strength  would  permit 
him  to  speak  for  a  few  moments.  He  spoke  without  pre 
meditation,  compelled  by  his  feelings  and  his  knowledge  of 
human  motives  and  political  action.  His  emaciated  form 
and  the  pallor  of  death  upon  his  face  enlisted  unbounded 
sympathy,  and  tradition  had  it  for  many  years  that  Ames' 
speech  on  the  British  treaty  was  the  most  powerful  ever 
delivered  in  Congress.  Be  that  as  it  may,  the  speech  in 
junction  with  the  other  factors  mentioned  secured  a  ma 
jority  in  favor  of  the  treaty.  The  perplexing  problem 
which  was  presented  was  deferred  for  a  more  mature  gov 
ernment  and  wider  experience  to  solve.  The  result  of  the 
conflict  had  shown  a  difficulty  in  the  practical  working  of 
the  Constitution,  which  still  remains  unremedied. 


118  [44 

The  three  different  ballots  taken  upon  the  treaty  proved 
a  very  close  division  of  opinion.  The  first  was :  For  a 
motion  declaring  the  treaty  objectionable,  forty-eight; 
against  such  a  declaration,  forty-eight,  with  the  vote  of  the 
Speaker.  The  second  vote  stood :  For  declaring  the  treaty 
objectionable,  forty-nine ;  against  such  a  declaration,  forty- 
nine.  The  Speaker  voted  with  the  negative.  Some  declared 
for  the  treaty  because  they  did  not  believe  it  objectionable, 
others  because  they  feared  a  contrary  declaration  was  inju 
rious,  and  still  others  supported  the  treaty  because  to  object 
to  it  was  to  object  to  all  compromise.  The  final  ballot  came 
upon  a  motion  by  Mr.  Hillhouse  of  Connecticut,  to  carry 
the  treaty  into  effect.  It  was  supported  by  fifty-one  mem 
bers  because  they  believed  the  treaty  a  good  one,  or  the  best 
under  the  circumstances.  Forty-eight  members  opposed  the 
treaty  as  a  bad  one.  Five  members  were  absent.  The  treaty 
was  safe.  The  interests  which  passed  it  were :  The  support 
of  Washington,  the  insignificance  of  the  sum  for  the  appro 
priation,  and  the  work  of  the  conservative  element.  The 
defeated  party  was  the  Democratic  party,  jealous  of  the 
powers  of  Congress  to  control  the  public  purse. 

The  debates  in  Congress  were  long  and  followed  out 
every  possible  line  of  argument.  Concerning  them,  Chief 
Justice  Marshall  said :  ' '  Never  had  a  greater  display  been 
made  of  argument,  of  eloquence,  of  passion."63  Washing 
ton  notes  that  "it  (the  treaty)  suspended  in  a  manner  all 
other  business ' '  of  the  House  and  ' '  agitated  the  public  mind 
in  a  higher  degree  than  it  has  been  at  any  period  since  the 
Revolution." 

When  the  House,  by  so  frail  a  majority,  voted  to  support 
the  treaty,  it  was  taken  up  in  public  meetings,  discussed  in 
the  newspapers,  and  even  condemned  or  approved  in  the 
State  Legislatures. 

People  all  over  the  United  States  took  up  the  debate 
either  for  or  against  such  a  relation  with  Great  Britain,  and 

63  Annals  of  Congress,  Fourth  Congress,  first  session.  Editorial 
note. 


45] 


119 


the  work  of  the  opposition  is  a  blot  upon  the  fair  adminis 
tration  of  "Washington. 

Randolph,  as  Secretary  of  State,  was  one  of  the  few  who 
became  acquainted  with  the  treaty  upon  its  arrival  in 
America,  and  he  has  been  accused  of  giving  out  unfavor 
able  articles  of  the  compact  to  which  he  was  so  much  op 
posed.  This  was  done  in  May,  1795,  for  the  purpose  of 
forming  a  hostile  sentiment.  There  is  evidence  supporting 
such  a  statement  in  the  fact  that  the  condemnation  of  the 
treaty  spread  much  faster  than  any  accurate  knowledge  of 
its  contents.  Opposition  really  began  with  the  appointment 
of  Jay,  which  was  declared  unconstitutional.  Legislative 
measures  with  a  purpose  to  destroy  any  fruits  which  might 
result  from  Jay's  mission  have  already  been  noted.64 

But  the  final  burst  of  indignation  came  after  the  mis 
conduct  of  Senator  Mason  in  the  publication  of  the  treaty 
on  July  2,  1795.  Thomas  Jefferson  voiced  the  Republican 
sentiments  when  he  called  the  incident  ' '  a  bold  act  of  duty 
in  one  of  our  Senators."65  He  called  the  treaty  an  "exe 
crable,"  "an  infamous  act"  which  was  "nothing  more  than 
a  treaty  of  alliance  between  England  and  the  Anglo-men  of 
this  country  against  the  legislature  and  people  of  the  United 
States."  The  publication  precipitated  a  storm  of  abuse. 
The  waves  of  party  feeling  ran  high,  and  were  agitated  still 
further  by  demagogues  and  mob  orators.  Public  meetings 
denounced  the  treaty  on  every  side.  Copies  of  it  were 
burned  before  many  of  the  homes  of  British  officials,  north 
and  south.  Jay  was  dragged  through  the  streets  in  effigy 
and  guillotined.60  He  was  pictured  as  selling  for  British 
gold  the  interests  of  his  country.  Language  far  beyond 
what  is  fit  for  publication  was  used  to  characterize  his  act. 
In  banquets  which  were  in  any  way  concerned  with  interna 
tional  interests,  toasts  in  the  form  of  puns  upon  his  name 


Supra  Part  I,  Section  2 ;  Part  II,  Section  1. 
American  Historical  Keports,  1901,  Vol.  I,  p.  287. 
Appendix  C. 


120  [46 

were  strictly  in  order.67  The  political  newspapers  of  Cor- 
bett,  Freneau,  Fermo,  and  Bache  reveled  in  malignancy  and 
abuse.  Some  of  the  most  venomous  articles  were  in  the 
Aurora,  and  written  by  John  Beckley,  who  signed  himself 
' '  A  Calm  Observer. ' '  At  Boston,  in  June,  1795,  a  publica 
tion  invited  all  Americans  who  felt  "the  spirit  of  resent 
ment  and  revenge"  to  assist  in  burning  a  Bermudan  pri 
vateer.68  This  action  was  taken  at  the  instigation  of  the 
French  consul  at  that  port.  The  vessel,  properly  called  the 
' '  Speedwell, ' '  was  sailing  under  the  name  of  the  ' '  Bettsy  of 
St.  Croix"  to  deceive  the  privateers  of  the  Bermudas.  She 
was  dismantled  and  burned  to  the  water's  edge.  The  papers 
later  characterized  the  deed  as  one  which  could  "hardly  be 
justified. ' ' 

From  Boston  messengers  riding  night  and  day  carried 
the  news  to  New  York.  For  days  the  probable  downfall  of 
the  treaty  had  been  discussed  on  every  street  corner.  When 
the  news  came  from  Boston,  the  citizens  of  New  York  felt 
that  such  action  was  worthy  of  all  imitation,  and  soon  after 
stoned  Hamilton  in  his  attempt  to  defend  the  treaty.  The 
proceedings  in  Philadelphia  have  already  been  suggested. 
Virginia  very  strongly  declared  its  intentions  of  withdraw 
ing  from  the  union. 

In  Charleston  the  hangman  was  chief  official  in  burning 
the  treaty  in  the  public  square,  while  the  British  flag  was 
dragged  through  the  streets.  South  Carolina  was  particu 
larly  strong  in  declaring  its  '  *  abhorrence  and  detestation  of 
a  treaty  which  gave  the  English  government  more  power 
over  us  as  states  than  it  claimed  over  us  as  colonies — a 
treaty  involving  in  it  pusillanimity,  stupidity,  ingratitude, 
and  treachery. ' '  It  claimed  that  the  Senators  who  had  ad 
vocated  the  treaty  were  unworthy  any  further  trust,  and 

67  "  A  perpetual  harvest  to  America ;  but  dipt  wings,  lame  legs,  the 
pip,  and  an  empty  crop  to  all  Jays. ' ' — Aurora,  July  7,  1795. 

"The  Republic  of  America:   May  she  never  mistake  Jaybirds  for 
Eagles. ' ' — Courier  Frangaise,  July  15,  1795. 

68  Cf.  McMaster's  "History  of  the  United  States,"  Vol.  II,  p.  217. 
Also,  Hildreth's  "History  of  the  United  States,"  Vols.  IV,  V. 


47]  121 

their  six-year  term  was  dangerous  to  American  liberty  un 
less  the  constitution  should  be  amended. 

When  the  treaty  was  ready  for  the  President's  signa 
ture,  the  cry  went  up :  This  was  the  test  '  *  whether  the 
majesty  of  the  people  was  like  the  children's  rattle,"  or  a 
power  in  absolute  and  real  existence.  When  the  President 
concurred  in  the  Senate's  action,  the  House  of  Delegates  in 
Virginia  voted  down  a  resolution  declaring  their  undimin- 
ished  confidence  in  the  President.  He  was  accused  of  usurp 
ing  the  powers  of  Congress.  From  all  quarters  he  had 
received  personal  letters  with  a  purpose  to  influence  him 
against  the  ratification.  These  continued  to  arrive  from 
outside  districts  until  the  late  spring  of  1796.  The  Presi 
dent's  conduct  was  subject  to  severe  criticism  by  Franklin69 
in  that  his  nomination  of  Jay  was  unconstitutional.  But 
there  is  nothing  in  the  Constitution  to  prohibit  it.  The 
President  was  becoming  "monarchial"  in  appointing  a 
man  so  opposed  by  the  House  of  Representatives.  But  such 
a  statement  is  totally  unauthorized  by  any  facts.  The  nomi 
nation  of  Jay  had  never  been  put  to  a  vote  in  the  House. 

It  is  not  to  be  wondered  at,  that  this  spirit  of  opposition 
found  its  way  into  the  halls  of  Congress  and  caused  long 
and  eloquent  discussions.  With  the  exception  of  the  Civil 
War  times,  never  has  public  opinion,  since  the  founding  of 
the  nation,  been  so  decided  and  demonstrative.  Through 
out  the  summer,  fall,  and  winter  of  1795  and  the  spring  of 
1796,  the  country  was  flooded  with  pamphlets,  anonymous 
letters  and  circulars.  Out  of  the  vast  amount  of  literature 
which  resulted,  that  of  Alexander  Hamilton,  as  "Camillus," 
is  in  defense  of  the  treaty  and  far  superior  to  any  other 
writings  for  either  side  upon  the  subject.  The  work  of  Ed 
ward  Livingston,  Secretary  of  the  Treasury,  as  "Decius,"  is 
the  best  in  behalf  of  the  opposition. 

Much  of  the  hostility  to  the  treaty  had  no  cause  but  the 
riotous  agitations  of  demagogues  and  their  contagious  ef- 

69  " Porcupine  Works,"  Vol.  II. 


122  [48 

fects.  The  objections  of  the  more  serious  thinkers  can  be 
classed  under  the  supposed  wrongs  which  the  treaty  would 
inflict  upon  the  American  carrying  trade,  its  disregard  of 
the  French  treaty,  the  lack  of  compensation  for  negroes, 
retention  of  forts,  and  commercial  depredations,  and  the 
unjust  principles  supposed  to  be  involved  in  its  interna 
tional  law  stipulations.  Most  of  these  reasons  have  been 
considered;  the  rest  will  be  left  for  separate  explanation 
under  the  effects  of  the  treaty. 

The  object  of  all  this  violence  was  to  intimidate  the 
President  and  bring  popular  feeling  to  bear  in  the  House 
against  the  ratification  of  the  treaty. 

The  character  of  the  factions  which  opposed  the  treaty 
explains  in  itself  the  reason  for  their  hostility.  They  were 
composed  of  those  southerners  who  had  not  been  compen 
sated  for  their  slaves  and  who  were  debtors  to  the  British 
and  hoped  to  escape  those  debts  by  their  confiscation  in  war ; 
of  the  French  party,  because  American  dependence  on  their 
commerce  as  well  as  their  political  influence  had  been  less 
ened,  also  the  relations  of  this  government  were  upon 
friendly  terms  with  their  enemy;  of  anti-federalists,  be 
cause  they  were  disarmed  of  an  effective  complaint  against 
the  government  in  the  retention  of  the  military  posts  and 
the  spoliations  of  commerce;  of  the  Jacobin  philosophers, 
and  especially  those  societies  in  New  York  whose  doctrines 
were  made  up  of  all  the  schemes  which  would  conflict  with 
the  existing  governmental  policy  ;70  of  the  disorganized  poli 
ticians  who  had  inbibed  the  spirit  of  opposition  upon  the 
street  corners  and  mass  meetings;  of  those  malcontents  of 
various  descriptions  who  loved  spoils  of  war  and  who  fol 
lowed  their  leaders  without  personal  reason  or  foresight; 
and  lastly  of  those  English  and  Irish  emigrants  who  had 
fled  from  justice  in  their  own  country  and  fearecj  punish 
ment  of  a  serious  or  petty  nature  if  returned. 

Jay  knew  the  treaty  would  never  become  popular  be 
cause  of  its  unsettled  interests.    He  writes:    "I  knew  and 


70  Two  of  their  publications  were  The  Jacobiniad  and  The  Guillotina. 


49]  123 

know  that  no  attainable  settlement  or  treaty  would  give 
universal  satisfaction  and  expect  the  one  I  have  signed  will 
administer  occasion  for  calumny  and  detraction.  *  *  * 
Demagogues  will  constantly  flatter  the  passions  and  preju 
dices  of  the  multitude  and  will  never  cease  to  employ  im 
proper  arts  against  those  who  will  not  be  their  instru 
ments."71 

Slowly  but  surely  the  tide  of  popular  feeling  began  to 
turn,  not  in  favor  of  the  treaty,  for  it  bore  the  indelible 
stamp  of  unpopularity.  The  course  of  popular  feeling 
turned  in  favor  of  Washington,  who  controlled  the  nation 
with  that  calm  dignity,  moral  independence,  conscious  recti 
tude,  beautiful  consistency  and  simplicity  of  purpose  which 
idealizes  him  in  the  hearts  of  his  countrymen.  It  was  only 
the  rancor  of  political  parties  which  libeled  this  man  who 
had  resisted  the  encroachments  of  England  on  a  weak  and 
dependent  country.  Spain  had  retired  before  his  unflinch 
ing  purpose  and  every  nation  in  Europe  felt  the  influence 
of  this  career  marked  with  probity  and  steady  devotion  to 
the  interests  of  the  United  States.  Jay  found  the  confidence 
placed  in  Washington  of  use  in  his  negotiations.72  Madison 
found  the  name  of  the  President  working  "wonderful  suc 
cess"  in  favor  of  the  treaty  of  America.73  "Washington's 
personal  authority  more  than  anything  else  carried  the 
treaty  and  averted  war  with  Great  Britain."74  By  his 
ratification  of  Jay's  work  he  demonstrated  to  the  world  the 
power  of  the  government  which  had  recently  been  estab 
lished.  The  United  States  was  no  longer  known  abroad  as 
the  weak  decentralized  power  existing  under  the  Articles  of 
Confederation,  but  for  the  first  time  it  was  placed  de  jure 
where  it  had  been  considered  de  facto.  Its  power  as  a 
treaty-making  nation  was  established,  and  its  position  con- 

71  Johnston 's  ' '  Life  and  Correspondence  of  John  Jay, ' '  Vol.  IV. 
Letter  to  President  Washington,  February  25,  1795. 

72  Ibid.,  Letter  to  Washington,  November  19,  1794. 

73 ' '  Writings  of  James  Madison. ' '     Letter  to  Ed.  Pendleton,  Feb 
ruary  7,  1796. 

74Fiske's  "Essays,  Historical  and  Literary,"  Vol.  II,  p.  135. 


124  [50 

firmed  among  the  family  of  sovereign  nations.  The  greatest 
benefit  of  Washington's  administration  is  that  in  this  polit 
ical  crisis  it  was  wise  enough  to  recognize  and  firm  enough 
to  accept  a  national  necessity.  To  him  and  to  his  assistants 
it  was  given  to  create  strength  from  their  weakness,  and  to 
develop  a  noble  pride  from  a  wise  humility.  No  Presiden 
tial  policy  could  be  more  simply  and  truly  outlined  than  in 
Washington's  reply  to  the  letter  of  the  Selectmen  of  Boston, 
July  28,  1795,  answering  their  questions  regarding  the 
treaty-making  power  under  the  Constitution.  This  letter,75 
coming  at  the  time  of  great  political  passion  and  contention, 
quieted  the  factions  among  the  people  of  the  north  and  reas 
oned  the  opposition  into  support. 

Concerning  the  arguments  in  the  Senate,  only  conjec 
tures  can  be  drawn.  It  is  quite  apparent  the  debates  for 
the  adoption  of  the  treaty  were  convincing.  These  two 
branches  of  the  government  were  sufficient  to  declare  the 


76  GENTLEMEN  :  In  every  act  of  my  administration  I  have  sought 
the  happiness  of  my  fellow  citizens.  My  system  for  the  attainment  of 
this  object  has  uniformly  been  to  overlook  all  personal,  local,  and 
partial  considerations;  to  contemplate  the  United  States  as  one  great 
whole;  to  confide  that  sudden  impressions,  when  erroneous,  would  yield 
to  candid  reflection ;  and  to  consult  only  the  substantial  and  permanent 
interests  of  our  country.  Nor  have  I  departed  from  this  line  of  con 
duct  on  the  occasion  which  has  produced  the  resolutions  contained  in 
your  letter  of  the  13th  instant. 

Without  a  predilection  for  my  owrn  judgment,  I  have  weighed  with 
attention  every  argument  which  has  at  any  time  been  brought  into 
view;  but  the  Constitution  is  the  guide  I  never  can  abandon.  It  has 
assigned  to  the  President  the  power  of  making  treaties,  with  the  ad 
vice  and  consent  of  the  Senate.  It  was  doubtless  supposed  that  these 
two  branches  of  government  would  combine  without  passion,  and  with 
the  best  means  of  information,  those  facts  and  principles  upon  which 
the  success  of  our  foreign  relations  depend;  that  they  ought  not  to 
substitute  for  their  own  connections  the  opinion  of  others,  or  to  seek 
truth  through  any  channel  but  that  of  temperate  and  well  formed  in 
vestigation. 

Under  this  persuasion  I  have  resolved  on  the  manner  of  executing 
the  duty  before  me.  To  the  high  responsibility  attached  to  it  I  freely 
submit;  and  you,  gentlemen,  are  at  liberty  to  make  these  sentiments 
known,  as  the  grounds  of  my  procedure.  While  I  feel  the  most  lively 
gratitude  for  the  many  instances  of  approbation  from  my  country,  I 
cannot  otherwise  deserve  it  than  by  obeying  the  dictates  of  my  con 
science.  With  due  respect,  I  am,  gentlemen,  your  obedient, 

GEORGE  WASHINGTON. 


51]  125 

treaty  in  force.  But  the  lower  house  of  Congress  and  the 
people  were  to  be  satisfied.  The  work  of  Fisher  Ames  won 
the  necessary  support  from  the  former  and  the  unequaled 
efforts  of  Alexander  Hamilton  won  conviction  from  the  con 
servative  elements  of  the  people.  Regarding  the  military 
posts,  the  commercial  and  negro  questions,  he  argued  better 
than  Jay  himself.  By  sound  reasoning  in  behalf  of  the 
treaty  and  ridicule  for  the  opposition  he  gained  the  support 
of  those  who  might  have  fallen  into  the  popular  channels. 
Those  who  endeavored  to  reply  to  his  essays  were  soon 
silenced  or  found  their  arguments  too  weak  to  gain  the 
needed  support.  These  essays  came  out  under  the  name 
"  Camillus, "  and  their  sole  purpose  was  to  reconcile  the 
people  to  the  action  of  the  administration.  Hamilton  had 
done  all  in  his  power  to  stem  the  tide  of  popular  opposition. 
The  success  of  his  work  was  shown  as  the  summer  of  1795 
went  by.  Jefferson  spoke  of  him  as  "really  a  colossus  to 
the  anti-republican  party"  and  "without  numbers,  a  host 
within  himself. ' ' 

Many  of  the  states  which  had  previously  opposed  the 
treaty  so  violently  now  suffered  a  reaction.  In  the  latter 
part  of  the  year  1795  most  of  them  had  sent  resolutions  in 
favor  of  the  treaty  to  Washington.  By  March  15,  1796, 
New  Hampshire,  Massachusetts,  Rhode  Island,  New  York, 
Pennsylvania,  Delaware,  Maryland,  and  North  Carolina 
had  declared  themselves  favorable  to  its  execution.  South 
Carolina  believed  the  treaty  to  be  injurious,  Kentucky 
called  it  unconstitutional,  and  Virginia  declared  for  ex 
treme  opposition.  The  party  which  had  been  won  over 
entertained  the  belief  which  Gouverneur  Morris  expressed : 
' '  That  more  noise  was  made  about  it  than  was  proper,  owing 
to  personal  causes. '  '76 

5.  On  the  other  hand,  no  such  criticism  is  applicable  to 
the  history  of  the  treaty  in  Great  Britain.  The  English 

76 ' '  Diary  and  Letters  of  Gouverneur  Morris. ' '  Entry  for  August 
22,  1795. 


126  [52 

Parliament  was  primarily  concerned  with  its  war  against 
France  and  the  affairs  upon  the  continent.  It  gave  a  small 
amount  of  attention  to  the  treaty  which  Grenville  and  the 
American  minister  were  negotiating.  It  was  satisfied  with 
Grenville 's  meager  report,  and  the  treaty  itself  was  allowed 
to  speak  as  a  result  of  the  negotiations. 

Opposition  to  the  treaty  was  very  slight.  However,  the 
faults  of  the  treaty  were  readily  recognized.  Charles  Fox, 
in  his  speech  before  the  British  Parliament,  made  objections 
to  the  same  articles  which  the  patriots  of  this  country  had 
made.  One  objection  was  that  "the  article  restricting  the 
trade  of  the  United  States  with  the  British  West  Indies  to 
vessels  not  exceeding  seventy  tons  was  equivalent  to  an  act 
for  creating  a  nursery  of  seamen  for  America. ' '  Small  ves 
sels  required,  in  proportion  to  their  tonnage,  an  additional 
force  of  seamen,  averaging  between  thirty-four  and  thirty- 
eight  more  men  for  vessels  of  forty  tons  than  vessels  of  four 
hundred  tons.77  The  most  serious  objection  which  appears 
was  raised  in  the  Irish  Parliament  by  Mr.  Gratan :  * '  This 
very  America  which  the  British  minister  insulted  and  then 
crouched  to  had,  by  the  late  Treaty  of  Commerce,  been  ad 
mitted  to  all  the  British  settlements  in  the  East  and  West 
Indies,  to  the  latter  of  which  Ireland  was  only  conditionally 
admitted,  and  from  the  former  unconditionally  excluded; 
yet  Ireland  was  a  loyal,  attached  nation,  and  America,  an 
alien."78 

The  attitude  of  the  British  Parliament  is  one  of  self- 
censure.  Mr.  Fox,  in  his  report  for  the  Committee  on  the 
State  of  the  Nation,  says:  "With  respect  to  America, 
*  *  *  after  giving  orders  for  taking  her  goods,  we  re 
called  those  orders  and  have  since  entered  into  a  treaty  by 
which  we  agree,  properly,  I  believe,  justly,  and  if  justly, 
wisely,  to  pay  for  the  rashness  and  folly  of  issuing  them. '  'T9 

77  Annals  of  Congress,  Fourth  Congress,  third  session,  p.  32. 
78Benton's   "Abridgment   of   the  Debates  of   Congress, "   Vol.   I, 
p.  718. 

"Hansard's  "Parliamentary  Debates/ '  Vol.  31,  p.  1368. 


53]  127 

Grenville,  in  regard  to  the  negotiations,  states  that  "he 
could  hardly  with  propriety  speak  of  a  treaty  which,  though 
signed,  was  not  yet  ratified.  When  that  was  done,  he 
undertook  for  himself  and  colleagues  to  show  that  it  was 
fraught  with  mutual  honor  and  advantage  to  both  countries, 
and  he  declared  that  he  should  always  consider  the  conduct 
of  the  gentleman  who  carried  on  the  negotiations  on  the 
part  of  America  as  highly  honorable  to  them,  marked  as  it 
was  by  temper,  moderation,  and  good  sense."  The  Mar 
quis  of  Lansdown  said  the  treatment  of  the  sister  people  of 
America  was  marked  with  more  than  common  outrage,  espe 
cially  in  regard  to  their  orders  upon  American  commerce, 
the  subtle  means  they  had  employed  in  causing  the  Alge 
rians  to  declare  against  America,  and  by  inciting  the  Indian 
tribes  against  them.  "No  power  on  earth  could  display 
more  true  wisdom,  more  dignified  moderation,  than  had  Mr. 
Washington  and  the  government  of  America. '  '80  On  July  4, 
1797,  Parliament  passed  an  act  of  twenty-seven  long  articles 
which  put  the  treaty  into  effect. 

Great  Britain  returned  the  compact  on  the  1st  of  Feb 
ruary,  1796,  and  in  the  latter  part  of  that  month  President 
Washington  issued  his  proclamation  requiring  its  observ 
ance  by  all  persons.  Jay  wrote  to  Grenville:  "The  treaty 
will  go  into  operation  and  supported  by  a  majority  of  the 
people,  a  majority  comprising  the  greater  part  of  the  men 
most  distinguished  by  talent,  weight,  and  worth."81 

III.— RESULTS  OF  THE  TREATY. 

By  the  proclamation  of  Washington,  requiring  the  ob 
servance  of  the  articles  in  the  Treaty  of  Amity,  Commerce, 
and  Navigation,  the  periods  of  negotiation  and  ratification 
of  the  treaty  proper  are  finished.  Yet  there  remains  a  solu 
tion  to  all  the  problems  which  were  viewed  with  deep  con- 

80  Hansard  'a  ' '  Parliamentary  Debates, ' '  Vol.  30,  p.  1401. 
"Johnston's  "Life  and  Correspondence  of  John  Jay," 
Letter  dated  May  1,  1796. 


128  [54 

cern  by  the  opponents  of  the  treaty  and  optimistically 
interpreted  by  its  advocates. 

1.  The  period  for  the  evacuation  of  the  forts,  which 
had  been  so  strongly  condemned,  was  sought  by  Great  Brit 
ain  to  insure  herself  from  any  breach  of  the  treaty  by  a 
government  which  she  did  not  as  yet  understand.  These 
$Drts82  were  evacuated  and  all  arrangements  regarding  them 
concluded  by  December,  1796.  Some  of  them,  Detroit  and 
Oswego  in  particular,  became  points  of  more  than  local 
interest.  Others  were  used  as  trading  posts  and  forts  from 
which  the  conduct  and  temper  of  the  Indians  could  be  in 
fluenced.  The  rest  have  crumbled  into  decay  and  oblivion. 

Before  appropriations  to  put  the  treaty  into  effect  had 
been  voted  by  Congress,  an  article83  explanatory  of  the 
third  article  of  the  treaty,  and  regulating  the  passage  of 
Indians  from  one  territory  to  the  other,  had  been  concluded, 
May  4,  1796. 

Articles  IV  and  V  related  to  the  settlement  of  the 
northwestern  and  northeastern  boundary  lines.  The  exact 
location  of  both  boundaries  has  been  subject  to  much  nego 
tiation.  A  convention  Avas  drawn  up  in  London,  May  12, 
1803,  and  attempted  to  settle  the  questions.  The  project 
was  submitted  to  the  Senate  upon  October  24  of  the  same 
year,  and  it  was  ratified  with  the  exception  of  the  fifth 
article.  This  declared  that  the  boundary  line  of  the  north 
west  should  be  the  shortest  line  drawn  from  the  source  of 
the  Mississippi  River  to  the  northwest  point  of  the  Lake  of 
the  Woods.  Ratifications  were  never  exchanged,  although 
this  boundary  line  is  taken  on  all  maps  of  the  United  States 
during  this  uncertain  period.  The  commission  under  the 
fourth  article  accomplished  nothing.  It  was  left  for  the 
purchase  of  Louisiana  in  1803  and  the  Webster- Ashburton 
treaty  of  1842  to  carry  the  boundary  line  to  the  Rocky 
Mountains,  and  to  the  settlement  of  1846  to  fix  the  boun 
dary  to  the  Pacific  coast. 

82  Appendix  E :  Consideration  and  Map. 

83  Appendix  B :  Explanatory  Articles. 


55]  129 

The  commission  under  the  fifth  article,  to  determine  the 
northeast  boundary  line,  met  at  St.  Andrews  in  Passama- 
quoddy  Bay  during  the  early  part  of  October,  1796.  The 
survey  was  started,  but  it  required  more  time  than  had  been 
expected,  and  they  adjourned  to  meet  at  Boston  in  August, 
1797.  A  difficulty  was  experienced  in  locating  the  river 
St.  Croix,  as  required  in  the  treaty,  and  in  March,  1798,  an 
explanatory  article  was  agreed  upon,  authorizing  the  com 
missions  to  designate  the  source  of  the  river  in  any  manner 
which  they  saw  fit.  The  survey  had  not  been  completed 
when  the  time  for  a  meeting  had  arrived,  so  they  met  at 
Providence,  Rhode  Island,  in  June  of  the  following  year. 
Their  decision  was  made  on  the  25th  of  October  and  given 
to  Congress  in  the  address  of  President  Adams. 

The  report,  as  given  by  the  commission,  was  a  compro 
mise.  Undoubtedly  the  river  intended  to  be  the  St.  Croix 
by  the  peace  commissioners  of  1783  was  the  most  easterly 
river,  or  the  Magadavy.  This  was  the  testimony  of  the 
commissioners  Adams,  Jay,  and  Franklin.  It  is  equally 
certain  that  the  river  accepted  as  the  St.  Croix  was  the  one 
so  named  in  the  traditions  and  treaties  of  two  centuries. 
England  succeeded  in  acquiring  several  square  miles  of 
territory  by  her  usual  method  of  adhering  to  the  letter  of 
the  treaty  rather  than  its  spirit.  The  identity  of  the  St. 
Croix  was  fixed  and  its  source  and  mouth  determined.  Here 
the  commissioners'  work  was  ended,  leaving  two  sections  of 
disputed  boundary  at  both  ends  of  the  river. 

A  question  soon  arose  as  to  what  part  of  the  country  was 
intended  by  "the  highlands,"  and  upon  this  hinged  the 
boundary  line  as  far  as  the  headwaters  of  Lake  Champlain. 
The  final  settlement  of  this  portion  came  in  the  Webster- 
Ashburtoh  treaty  of  1842. 

The  commissioners  did  not  feel  themselves  empowered  to 
settle  the  disputed  boundary  in  the  northeast,  and  the  sov 
ereignty  of  the  islands  in  the  Bay  of  Fundy  was  left  un 
settled.  From  the  point  which  the  commission  had  deter- 


130  [56 

mined  as  the  mouth  of  the  St.  Croix  to  the  ocean  was  twenty 
miles,  across  islands,  some  large  and  valuable,  and  some 
settled.  Great  Britain  claimed  jurisdiction  over  all  of  these 
with  the  exception  of  Moose  Island,  which  was  held  by  the 
little  town  of  Eastport.  The  question  of  this  boundary 
came  up  between  Rufus  King  and  Lord  Hawkesbury  in 
1803,  and  left  unsettled.  At  the  last  moment,  in  the  War 
of  1812,  the  British  captured  Moose  Island  with  the  hopes 
of  retaining  it  as  "spoils  of  war."  In  the  treaty  the  island 
was  retained  and  the  boundary  was  left  as  unsettled  as  be 
fore.  For  a  third  time  this  question  was  given  to  a  com 
mission  for  settlement  and  only  its  lack  of  proper  juris 
diction  is  recorded.  The  importance  and  desirability  of 
settling  this  question  does  not  seem  to  have  been  realized. 
While  the  northwestern  boundary  was  settled  in  1846,  the 
twenty  miles  of  disputed  boundary  in  the  east  remained  as 
it  did  when  the  commission  of  Jay's  treaty  left  it.  On 
July  16,  1891,  the  Canadian  cruiser  "Dream"  seized  seven 
fishing  boats  on  the  charge  they  were  fishing  in  Canadian 
waters.  Much  interest  was  aroused  and  a  convention  was 
drawn  up  between  the  United  States  and  Great  Britain  at 
Washington  on  July  22,  1892.  Article  II  of  this  convention 
provided  for  a  commission  to  settle  the  boundary.  "The 
phrasing  of  this  convention  furnishes  in  itself  a  most  ex 
cellent  example  of  how  a  thing  ought  not  to  be  done."84 
A  meeting  was  held  in  July,  1893,  and  nothing  resulted. 
The  last  meeting  was  held  in  1895,  and  the  only  agreement 
reached  was  to  report  separately  upon  their  proceedings. 
The  result  was  that  a  full  and  detailed  account  of  all  opera 
tions  was  made  by  the  American  commissioners  and  sub 
mitted  to  the  Department  of  State.  At  Washington  a  ra 
tional  boundary  line  was  laid  out,  and  according  to  this 
determination,  range  signals  and  monuments  were  actually 
erected.  These  remain  and  the  acceptance  of  them  in  the 


84  T.  C.  Mendenhall,  "Twenty  Unsettled   Miles  in  the  Northeast 
Boundary."     Proceedings  of  American  Antiquarian  Society,  Vol.  XI. 


57]  131 

immediate  neighborhood  will  make  easier  the  work  of  some 
future  commission. 

Articles  VI  and  VII  provided  for  commissions  to  settle 
the  amount  of  the  debt  due  British  creditors  before  the 
Revolution  and  the  amount  due  as  an  indemnity  by  Great 
Britain  for  the  spoliation  of  American  commerce. 

The  commission  on  the  confiscation  of  debts  met  in  Phila 
delphia,  May  29,  1797,  and  was  suspended  on  July  31,  1798. 
Some  differences  of  opinion  were  to  be  expected,  but  the 
discussions  developed  personal  feelings.  Mr.  Macdonald, 
one  of  the  British  commissioners,  "who  possessed  a  sense  of 
duty  unmitigated  by  a  sense  of  proportion, ' '  had  made  him 
self  disagreeable  in  many  particulars.  Matters  reached  an 
unbearable  condition  when  he  submitted  a  resolution  declar 
ing  that  from  the  beginning  of  the  Revolutionary  War  down 
to  the  time  of  the  Treaty  of  Peace,  the  United  States,  what 
ever  may  have  been  their  relations  with  other  powers,  stood 
to  Great  Britain  in  a  state  of  rebellion.  Americans  main 
tained  the  principle  that  the  Treaty  of  Peace  was  not  a 
grant  of  our  independence,  but  a  recognition  of  it.  The 
American  commissioners  took  the  resolution  as  an  insult 
and  withdrew.  Upon  March  29,  1802,  our  minister  at  Lon 
don,  Rufus  King,  was  instructed  to  negotiate  explanations 
for  this  article.  His  Britanic  Majesty  preferred,  rather 
than  negotiate  such  an  article,  to  avoid  further  expense  and 
discussion  by  fixing  the  debt,  for  which  the  United  States 
was  held  responsible,  at  a  given  sum.  Mr.  King  was  so  in 
structed,  and  the  convention  of  January  8,  1802,  resulted.85 
One  article  provided  for  the  continuance  of  the  commission 
under  the  seventh  article  of  Jay's  treaty.  In  regard  to  the 
sixth  article  of  the  same  treaty  it  was  provided  that  the 
United  States  should  pay  six  thousand  pounds  in  three  an 
nual  installments  to  relieve  herself  from  the  obligation 
thereby  assumed. 


85  American  State  Papers,  Foreign  Eelations,  Vol.  II.     Vide  Ap 
pendix  B,  Explanatory  Articles. 


132  [58 

Of  all  the  tribunals  which  sat  under  Jay's  treaty,  the 
one  which  was  convened  at  London  under  the  seventh  article 
is  the  most  important  and  interesting.  The  purpose  of  the 
commission  was  to  dispose  of  the  American  claims  against 
Great  Britain  for  the  captures  made  under  the  orders  of 
council,  and  the  British  claims  against  the  United  States' 
failure  to  enforce  neutrality. 

The  persons  composing  this  board  were  worthy  of  the 
question.  Christopher  Gore  and  William  Pinckney  were 
appointed  from  America,  and  John  Nicholl,  succeeded  by 
Maurice  Swabley,  and  John  Anstey  represented  Great  Brit 
ain.  The  fifth,  chosen  by  lot,  was  John  Trumbull  of  Con 
necticut. 

The  question  of  jurisdiction  divided  them  for  a  time, 
but  was  settled  by  Lord  Chancellor  Loughborough  in  that 
"the  doubt  respecting  the  authority  of  the  commission  to 
settle  their  own  jurisdiction  was  absurd,  and  that  they  must 
necessarily  decide  upon  cases  being  within  or  without  their 
competency. ' ' 

Other  important  questions  were  regarding  contraband 
goods,  rights  of  neutrals,  and  the  finality  of  the  decisions  of 
the  prize  courts.  In  their  solution,  Pinckney 's  discussions 
are  pronounced  by  Wharton  to  be  "finished  models  of  judi 
cial  eloquence,  uniting  powerful  and  comprehensive  argu 
ments  with  a  copious,  pure  and  energetic  diction."  The 
session  of  the  board  had  been  interrupted  from  July  30, 
1799,  to  February  15,  1802,  by  the  dissolution  of  the  trib 
unal  under  the  sixth  article.  The  work  was  closed  February 
24,  1804,  all  business  having  been  completed.  The  recovery 
from  this  commission  is  put  at  $11, 650,000. 8C  Trumbull 
said:  "The  whole  of  this  sum  was  promptly  paid  to  each 
client,  or  his  assignee ;  for  after  a  careful  and  accurate  ex 
amination  of  the  merits  of  every  case  of  complaint,  the 
awards  of  the  board  were  made  in  favor  of  each  individual, 


80  This  is  variously  estimated  from  $10,345,000  to  $11,656,000. 
Moore  gives  the  above.  Vide  American  State  Papers,  Foreign  Eela- 
tions,  Vol.  II,  pp.  119-123. 


59]  133 

in  the  form  of  an  order  to  pay,  and  payable  at  the  Treasury 
of  Great  Britain ;  nor  do  I  recollect  even  to  have  heard  a 
single  complaint,  of  the  delay  of  an  hour,  in  any  instance  of 
an  award  presented  for  payment. '  '87 

The  total  of  the  awards  paid  by  the  United  States  appear 
to  have  been  $143,428.14.  The  main  point  in  this  settle 
ment  was  that  a  government  is  liable  to  damages  for  a  neg 
lect  to  perform  its  neutral  duties.  This  was  the  foundation 
of  the  awards  made  at  Geneva  in  1872. 

2.  There  were  other  principles  of  constitutional  and 
international  law  which  were  brought  out  in  this  treaty  of 
1794.  Since  this  was  the  first  treaty  entered  into  by  the 
United  States  under  the  present  government,  some  questions 
of  constitutional  law  would  naturally  be  raised. 

The  discretionary  power  of  the  House  of  Representa 
tives  in  regard  to  voting  appropriations  for  the  execution 
of  a  treaty  has  nothing  to  do  with  the  treaty  proper,  except 
that  it  was  here  raised  for  the  first  time.  The  declaration 
made  by  the  House  has  been  affirmed  repeatedly  in  later 
years  whenever  treaties  requiring  extensive  or  important 
legislation  have  come  up  for  discussion.88  The  question  re 
mains  as  unsettled  by  courts  or  legislature  as  it  was  in  the 
year  1796.  There  is  a  parallel  to  this  difficulty  in  the  treaty- 
making  power  of  the  crown  of  England,  which  requires  the 
Commons  to  vote  appropriations  to  His  Majesty's  tracts. 
Any  discretionary  power  which  the  Commons  may  have 
maintained  has  never  been  recognized  by  the  King. 

Jay's  treaty  has  been  criticized  by  Lyman89  as  a  treaty 
accomplishing  nothing.  But  its  material  benefits  have  been 
given,90  and  in  addition  to  the  principles  of  international 
law  which  were  raised  or  established,  it  confirmed  the  title 
of  the  United  States  to  membership  in  the  "family  of 
nations. ' ' 


87  John  Basset  Moore,  i '  American  Diplomacy, ' '  p.  207  et  seq. 

88  Vide   ' '  Eeports   on  the  Law   of   Civil  Government  in   Territory 
Subject  to  Military  Occupation  by  the  Forces  of  the  United  States," 
by  Charles  E.  Magoon,  1903,  for  a  list  of  these  occasions  and  a  dis 
cussion  of  the  principles  involved. 

89  Lyman,  "Diplomacy  of  the  United  States,"  p.  222. 

90  Supra  Section  1. 


134  [60 

A  spirit  of  international  comity  was  here  more  strongly 
developed  than  at  any  previous  period  of  relations  with 
Great  Britain. 

Under  commercial  regulations  the  intention  to  enter  a 
blockaded  port  was  declared  no  cause  for  condemnation.91 
The  declaration  that  the  ships  of  war  of  one  of  the  con 
tracting  parties  should  be  hospitably  received  and  protected 
in  the  ports  of  the  other  was  a  courtesy  in  the  general  usage 
of  nations  here  endorsed.92 

The  treaty  provides  that  British  subjects,  then  owning 
lands  in  the  territory  of  the  United  States,  may  continue 
to  hold  them  according  to  their  respective  titles.  And  the 
Supreme  Court  held  that  these  provisions  are  parts  of  the 
supreme  law  of  the  land,  being  a  constitutional  exercise  of 
the  treaty-making  power.93 

The  ninth  article  provides  that  British  subjects  holding 
lands  in  the  United  States,  and  their  heirs,  so  far  as  their 
lands  are  concerned,  and  the  remedies  incident  thereto,  shall 
not,  as  aliens,  have  their  estates  confiscated.  The  parties, 
however,  must  show  that  the  title  of  the  land  in  question 
was  in  their  ancestors  when  the  treaty  was  made,94  although 
their  actual  possession  was  not  necessary.95  Nor  was  it 
necessary  that  present  holders  should  become  citizens,90  nor 
did  the  article  intend  to  include  any  other  persons  than  such 
as  were  British  subjects  or  American  citizens.97  Several 
cases  were  then  raised  in  an  attempt  to  reclaim  lands  upon 
the  termination  of  the  treaty  by  the  War  of  1812.  But  it 
was  held  that  the  termination  of  an  international  compact 
does  not  destroy  property  rights  already  vested  under  it.98 

From  the  policy  of  confiscating  debts,  many  cases  arose, 
especially  in  the  south.  The  history  of  such  acts  is  given  in 

814  Cranch  185. 

82  Wharton,  ' '  International  Law  Digest, ' '  Vol.  II,  p.  159. 

93  7  Cranch  603. 

94 1  Wheaton  300;  3  Peters  242. 

95  7  Wheaton  534. 

98  3  Wheaton  594. 

97  4  Wheaton  453. 

98  8  Wheaton  464. 


61]  135 

Gushing 's  opinion"  of  November  24,  1790.  The  confiscation 
of  the  estates  of  American  refugees,  as  described  in  the 
treaty,  had  been  carried  out.  Part  of  the  money  had  been 
paid  creditors  and  the  rest  placed  in  the  state  treasuries. 
Such  action  was  annulled  by  the  treaty  of  peace  and  the 
British  subjects  had  their  estates  restored  and  profits  ac 
counted  for.  All  justice  in  debts  had  been  given  to  British 
subjects  and  American  citizens  until  paper  money  was  sub 
stituted.  The  effects  of  continental  currency  are  well 
known.  The  proceedings  of  the  commission  settling  this 
matter  have  been  explained.100  The  court  holds  that  debts 
contracted,  and  interrupted  by  war,  may  be  legally  confis 
cated,  but  such  is  not  generally  done  from  policy.101 

One  of  the  serious  causes  of  complaint  against  the  treaty 
was  the  admission  of  provisions  as  contraband  of  war.102 
This  was  the  principle  Great  Britain  wished  to  establish, 
and  which  was  endorsed  by  Wolfius  and  Vattel.  It  was 
never  completely  decided  one  way  or  the  other.  In  general, 
the  modern  law  holds  them  not  contraband,  but  they  may 
become  so  under  circumstances  arising  out  of  peculiar  con 
ditions.103 

Finally,  an  interesting  question  was  raised  during  the 
negotiations  as  to  the  legal  right  of  Great  Britain  to  the 
slaves  she  had  exported.  The  British  negotiator  not  only 
claimed  that  by  war  property  in  movables  was  acquired 
as  soon  as  such  came  within  the  enemy's  lines,  but  that 
slaves  were  men,  not  property.104  This  latter  principle  was 
never  established  in  international  law,  but  the  question  in 
volved  was  decided  in  favor  of  Great  Britain,  and  no  in 
demnity  was  given  for  the  seizure  of  slave  property. 

3.     By  depriving  the  south  of  this  great  factor  in  its 


99  Opinions  of  Attorney  Generals.     Cf.  American  State  Papers,  Vol. 
I,  p.  224. 

100  Supra  p.  57. 

101  2  Martin 's  North  Carolina  Eeports,  p.  83. 

102  Vide  p.  24. 

103 1  C.  Eobinson  189,  High  Court  of  Admiralty. 
104  American  Historical  Eeports,  1901,  Vol.  I. 


136  [62 

agricultural  production,105  England  carried  out  her  policy 
of  injury  to  American  commerce.  To  counteract  this  pur 
pose,  America  met  monopoly  with  monopoly,  restriction 
with  restriction.  There  was  a  great  danger  to  the  United 
States  in  this  conduct.  "To  close  to  foreigners  any  of  our 
ports,  as  many  of  them  were  closed  to  us,  would  mean  the 
ruin  of  those  ports  and  probably  the  immediate  end  of  the 
nation."106  Our  policy  until  1790  had  been  to  open  our 
ports  to  all  foreign  nations  and  by  granting  commercial 
privileges,  hoped  to  receive  them.  This  policy  failed,  and 
the  one  of  retaliation  and  restriction  resulted.  But  our  eco 
nomic  conditions  prohibited  the  execution  of  this  method, 
and  Jay 's  treaty  marks  the  first  step  to  gain  by  negotiations 
what  could  not  be  won  by  favor  or  retaliation.  Great  Brit 
ain  was  under  a  great  advantage  in  this  treaty  from  the 
fact  that  British  commerce  was  established  on  an  abundant 
experience,  while  ours  lacked  maturity  arid  improvement. 

It  was  the  commercial  article  which  excited  the  greatest 
hostility.  In  addition  to  the  objections  that  right  of  search 
and  impressment  were  not  prohibited,  free  ships  did  not 
make  free  goods  and  the  lack  of  indemnity  for  commercial 
spoliations,  there  was  the  complaint  against  the  price  paid 
for  limited  privileges  with  the  West  Indies  and  the  limita 
tions  of  general  carrying  trade. 

In  behalf  of  commercial  interests,  the  Senate  showed 
great  wisdom  and  foresight  in  rejecting  the  twelfth  article. 
By  it  ship-timber,  tar,  hemp,  sails,  and  copper  in  sheets  were 
declared  contraband  of  war,  although  declared  free  in  all 
other  treaties  between  the  United  States  and  other  nations. 
This  would  have  limited  our  carrying  trade  with  Europe  in 
the  following  years  when  it  was  very  important.  By  the 
article  cotton  was  also  prohibited  from  exportation.  The 
importance  of  this  produce  was  as  yet  unappreciated  in  the 
United  States.  Jay  evidently  did  not  know  the  industry 

10B  Vide  infra,  Section  5. 

100  Thomas  W.  Page,  ' '  Earlier  Commercial  Policy  of  the  United 
States, ' '  Journal  of  Political  Economy,  Vol.  X,  p.  177. 


63]  137 

had  been  started,  or  that  it  was  of  any  considerable  inter 
est.107  A  small  quantity  was  exported  from  Georgia  in 
1783.  In  1789  a  member  in  Congress  stated  that  the  south 
ern  states  were  intending  to  cultivate  cotton,  and  "if  good 
seed  could  be  procured,  he  believed  they  might  succeed." 
It  was  not  cultivated  much  for  exportation  until  1791  or 
1792,  but  from  that  date  it  had  a  rapid  growth  in  commer 
cial  importance.108 

The  advantages  which  were  lost  by  the  treaty  were :  The 
right  of  a  special  or  general  embargo,  the  right  of  seques 
tration  as  far  as  Great  Britain  was  concerned,  the  right  of 
discriminating  against  British  goods  in  favor  of  those  of 
other  nations,  and  the  right  of  suspension  of  commercial 
intercourse  was  especially  stipulated  against,  for  a  limited 
time.  These  restrictions  were  viewed  with  grave  apprehen 
sions  by  statesmen  in  opposition  to  relations  with  Great 
Britain.  They  were  considered  as  limitations  upon  the  na 
tional  sovereignty  of  the  United  States. 

These  were  the  objections  which  seemed  at  the  time  to 
be  well  founded.  But  the  distressful  picture  was  over 
drawn.  On  both  sides  the  treaty  created  a  disposition  to 
try  some  other  policy.  Under  Jefferson,  our  citizens  be 
lieved  it  would  be  best  if  governments  would  cease  striving 
for  the  ascendancy  of  the  sea,  and  permit  the  cheapest 
carrier  to  get  the  freight.  Their  reason  was  not  economic, 
but  rather  a  belief  that  America  could  carry  at  less  cost 
than  any  other  nation. 

In  England  it  was  found  that  the  advantages  of  their 
treaty  were  failing  to  kill  the  wonderful  vitality  of  the 
"Yankee  marine,  with  no  right  to  exist."  The  amount  of 

107  Lyman,  « '  The  Diplomacy  of  the  United  States, ' '  p.  220. 

108  "A  Statistical  View  of  the  Commerce  of  the  United  States," 
Pitkin. 

1791 189,316  Ibs. 

1792 138,328  Ibs. 

1793 487,600  Ibs. 

1794 1,601,760  Ibs. 

1795 6,276,300  Ibs. 


138  [64 

registered  tonnage,  employed  in  foreign  trade,  made  rapid 
progress.109  This  growth  continued,  notwithstanding  the 
restrictions  of  Jay's  treaty  which  had  been  finally  assented 
to  by  the  merchants  as  a  means  of  obtaining  compensation 
for  their  losses,  otherwise  than  from  the  United  States 
Treasury.  It  was  also  adopted  as  an  alternative  of  war, 
which  would  have  ruined  one  of  the  most  thrifty  periods  in 
American  commerce. 

The  influence  of  the  treaty  is  also  apparent  in  our  com 
merce  with  France  and  England.  The  belief  of  Washing 
ton's  administration  that  British  relations  were  of  more 
value  than  French  is  materially  justified  from  the  following- 
figures.  The  year  and  valuation  of  exports  with  France  and 
her  colonies  is  shown  as  follows : 

1797 $12,449,076 

1798 6,968,996 

1799 2,780,504 

1800 5,163,833 

With  Great  Britain  and  colonies : 

1797 $9,212,235 

1798 17,184,347 

1799 26,546,987 

1800 27,310,289 

The  East  India  trade  was  found  so  satisfactory  that  no 
modification  was  made  until  the  expiration  of  the  commer 
cial  part  of  the  treaty  in  1807.  In  December  of  that  year 
Pinckney  and  Monroe  made  slight  changes,  which  lasted 
until  April  30,  1811,  when  Parliament  made  complete  regu 
lations.110 


109Pitkin,   "A  Statistical  View  of  the  Commerce   of  the  United 

States, ' '  p.  389. 

1793 367,734  tons 

1794 438,862  tons 

1795 529,470  tons 

1796 576,733  tons 

1797 597,777  tons 

1798 603,376  tons 

110  Pitkin,   ' '  A   Statistical   View   of   the   Commerce   of  the   United 

States,"  p.  174. 


65]  139 

The  war  in  which  England  was  engaged  with  France  in 
1793,  with  Spain  in  1796,  and  which  continued  until  all  the 
nations  of  Europe  were  involved,  threw  into  the  hands  of 
the  American  merchant  a  large  part  of  the  world's  com 
merce.  This  was  carried  on  under  the  difficulties  rendered 
by  England's  superior  naval  forces  which  she  was  allowed 
to  use  in  default  of  prohibitory  articles  in  Jay's  treaty. 

4.  The  last  matter  for  consideration  under  the  effects 
of  the  treaty  is  its  political  result  with  the  foreign  nations 
interested  in  our  relations  with  Great  Britain.  These  na 
tions  were  Spain  and  France. 

The  actions  of  Spain  were  only  such  as  were  dictated  by 
the  French  ministry  and  of  minor  consideration.  At  this 
period  Spain  held  Louisiana,  and  her  objection  to  Jay's 
treaty,  especially  the  explanatory  article  of  May  4,  1796, 
was  the  favor  England  received  in  the  navigation  of  the 
Mississippi  River.  Spain  deemed  this  sufficient  cause  for 
retaining  garrisoned  towns  along  the  river  and  refusing  to 
run  out  the  boundary  lines  between  her  possessions  and 
those  of  the  United  States.  Any  trouble  which  might  have 
occurred  was  avoided  by  the  Treaty  of  St.  Ildefonso  in  1800 
between  France  and  Spain,  in  which  Louisiana  was  ceded 
back  to  France. 

A  far  more  active  interest  in  Jay's  negotiations  and 
treaty  was  taken  by  the  French  nation.  In  America,  the 
action  of  the  party  in  sympathy  with  France  reflected  the 
hostility  which  was  exhibited  by  that  country  against  any 
amicable  relations  with  Great  Britain.111 

Before  war  had  been  declared  between  these  European 
nations  in  1793,  France  formed  the  policy  of  injuring  Great 
Britain  through  a  close  alliance,  commercially  and  politi 
cally,  with  the  United  States.  Her  treaty  with  America  in 
1787  was  an  early  step  in  this  direction.  When  peaceful 
negotiations  were  decided  upon  between  America  and  Eng- 
land,  France  made  every  possible  objection.  The  letters 
111  Supra,  p.  46. 


140  [66 

from  our  minister  at  Paris  to  President  Washington  cau 
tioned  our  government  against  the  possible  hostility  of 
France.  The  other  method  by  which  her  influence  was  ex 
ercised  on  the  administration  was  by  her  sympathizers  in 
America.112  The  party  methods  were  radical/13  and  be 
came  more  so  when  its  partisans  failed  to  hinder  the  admin 
istration  in  its  purpose.  While  the  negotiations  were  going 
on  in  London,  Genet,  in  America,  was  stirring  up  all  pos 
sible  opposition,  not  only  against  the  conjectured  treaty  but 
against  the  character  of  the  men  interested  in  the  peaceful 
results  of  the  mission. 

When  the  treaty  was  finished  a  copy  was  immediately 
demanded  by  the  French  government  through  our  minister, 
Mr.  Monroe.  Jay  very  properly  declined  to  reveal  the  un- 
ratified  document,  and  French  hostility  increased.  During 
the  secret  discussion  in  the  Senate,  the  opposition  grew  and 
long  detailed  accounts  relating  to  the  political  conditions 
were  sent  by  the  French  minister  to  his  home  government.114 

Upon  the  publication  of  the  treaty  and  the  full  knowl 
edge  of  its  contents,  the  red  flames  of  opposition  burst  forth 
in  all  their  fury.  The  presence  of  Monroe  at  Paris  and  the 
confidence  the  French  ministry  had  in  him  as  one  of  their 
sympathizers  probably  averted  an  immediate  rupture.  As 
it  was,  he  was  constantly  employed  in  explanations  and  an 
swering  complaints  of  the  French  government.115  Although 
there  were  other  accusations,  Jay's  treaty  was  the  chief 
cause  of  complaint.  All  the  detailed  objections  can  be 
classed  under  two  heads :  the  declaration  of  American  neu 
trality  and  the  protection  granted  British  interests  in  the 
United  States.116 


112  Appendix  D  (3). 

113  Supra,  p.  46. 

114  Appendix  D  (5). 

115  State  Papers,  Foreign  Relations,  Vol.  I.     French  Affairs,  p.  559 
et  seq.     Cf.  Lyman,  "Diplomatic  History  of  the  United  States,'7  p. 
156  et  seq. 

110  John  Basset  Moore,  ' '  Diplomacy  of  the  United  States. ' ' 


67]  141 

The  relations  between  the  two  countries  became  so  dis 
tant  that  the  ministers  of  both  were  recalled.  Adet  was 
instructed  to  inform  this  government  that  the  treaty  of  1787 
was  at  an  end. 

Serious  trouble  might  have  resulted  but  for  the  fact  that 
France  was  so  unstable  in  her  government  that  it  was  im 
possible  to  maintain  a  policy  consistently  and  for  any  length 
of  time. 

The  French  party  in  America,  like  Genet,  carried  its 
policy  too  far  and  produced  a  reaction  upon  the  people.117 
The  treaty  was  ratified,118  notwithstanding  the  frenzied  op 
position,  and  the  party  passed  away  in  becoming  silence. 

5.  But  one  other  interest  remains.  There  has  been  a 
natural  tendency  to  omit  the  influences  brought  to  bear  upon 
the  treaty  of  1794,  both  in  its  making  and  in  its  ratification, 
by  the  slavery  interests  of  the  United  States.  This  is  ac 
counted  for  by  the  fact  that  slavery  is  not  mentioned  in  the 
treaty  itself,  and  it  is  in  this  omission  that  the  interest  lies. 

The  real  significance  of  the  negotiation  in  this  respect 
lies  not  so  much  in  the  fact  that  by  it  the  immediate  event 
was  changed  as  that  upon  this  occasion  the  question  made 
its  earliest  formal  appearance  in  the  diplomacy  of  the  na 
tion.  A  few  claims119  had  been  made  previously  in  its  be 
half,  but  for  the  first  time  in  1794  the  public  sentiment  was 
brought  definitely  to  bear  upon  the  subject. 

The  policy  of  the  British  during  the  war  had  been  to 
weaken  colonial  power  by  depriving  them  of  the  services  of 
their  slaves.  In  conformity  with  this  attitude,  General 
Clinton  and  Lord  Cornwallis  issued  a  proclamation  offering 
freedom  to  all  slaves  escaping  into  British  lines.  The  effect 
was  immediate  and  disastrous  to  agricultural  interests. 
Virginia  alone  lost  thirty  thousand  slaves  in  Cornwallis' 
invasion  in  1778.  Jefferson  estimates  that  Georgia  lost 

117  Fide  supra,  p.  43. 

118  Appendix  D  (4). 

119  First,  discussion  followed  for  a  decade  under  Adams  with  Car 
marthen  and  Pitt,  then  Governeur  Morris  with  Pitt  and  the  Duke  of 
Leads,  finally  Jefferson  with  George  Hammond.     American  State  Pa 
pers,  Foreign  Relations,  Vol.  I,  p.  188  et  seq. 


142  [68 

seven-eighths  of  her  negroes,  and  Ramsay  is  responsible 
for  the  statement  that  South  Carolina,  between  1775  and 
1783,  lost  twenty-five  thousand  slaves  valued  at  twelve  mil 
lion  five  hundred  thousand  dollars.120 

After  the  surrender  at  Yorktown,  the  exportation  of  the 
negroes  was  a  consistent  finality  to  the  British  policy.  A 
commission  was  appointed  by  Washington  to  watch  the  de 
parture  of  British  ships,  but  their  inspections  were  ignored 
or  prevented,  and  the  theft  of  American  slaves  continued. 
It  was  for  a  compensation  of  such  action  that  Jay  was  in 
structed  to  exact  an  indemnity  from  England. 

In  the  negotiations,  the  slaves  in  question  were  divided 
into  three  classes:  First,  those  captured  and  disposed  of 
during  the  war,  and  concerning  these  both  Grenville  and 
Jay  agreed  that  the  United  States  had  no  interest :  second, 
those  remaining  with  and  belonging  to  Americans  in  the 
British  lines.  Jay  claimed  that  as  they  belonged  to  and  re 
mained  with  Americans,  even  within  the  British  lines,  the 
treaty  was  fully  applicable.  The  enemy  had  never  taken 
them  from  their  masters  or  treated  them  as  booty,  so  prop 
erty  rights  remained  unchanged.  Grenville  was  doubtful  of 
the  validity  of  such  a  proposition.  The  third  class  included 
those  negroes  who,  confiding  in  the  promise  of  freedom,  fled 
to  the  British  army.  The  greatest  difficulty  arose  over  this 
class.  Jay  maintained  that  their  flight  from  American  mas 
ters  and  reception  in  the  British  lines  did  not  extinguish 
their  slave  character.  Grenville  maintained  all  property 
crossing  into  British  lines  became  British  property,  there 
fore  free. 

The  question  then  resolved  itself  into  whether  the  clause 
in  the  treaty  of  1783  called  for  a  restoration  of  all  negroes 
in  the  British  lines  at  the  close  of  the  war  or  applied  to 
those  who  might  fall  into  British  hands  after  the  treaty  of 
peace.  The  right  of  the  question  was  undoubtedly  upon  the 
British  side,  and  they  became  firmer  and  more  impressed 

120  American  Historical  Eeport,  1901,  Vol.  I,  p.  273  et  seq.  Article 
by  F.  A.  Ogg,  ' '  Jay 's  Treaty  and  the  Slavery  Interests  of  the  United 
States. ' ' 


69]  143 

with  their  argument  as  the  negotiations  proceeded.  As  a 
matter  of  the  intentions  of  the  negotiators  of  the  treaty  of 
peace  the  attitude  of  the  United  States  was  absolutely  cor 
rect.  All  negroes  in  the  British  lines  were  to  be  returned  to 
their  rightful  American  owners. 

The  discussions  between  Jay  and  Grenville  came  to  noth 
ing.  Jay  was  not  the  man  to  take  particular  delight  in 
upholding  the  slavery  interests  of  his  country.  He  had  ex 
pressed  himself121  that  the  United  States  must  abolish  slav 
ery,  or  "their  prayer  to  Heaven  for  liberty  would  be  im 
pious."  The  slavery  question  was  reported  by  Jay  as  one 
of  the  subjects  of  existing  differences,  and  the  treaty  with 
no  compensation  for  the  southern  losses  came  into  Congress. 

It  is  not  surprising  that  the  document  met  with  animated 
resistance  from  the  south.  The  debates  in  Congress  dis 
cussed  the  slave  question  thoroughly,122  and  the  attitude  of 
some  of  the  southern  states  was  too  rabid  to  be  reviewed 
with  any  pleasure.123  Jay's  treaty  brought  before  the  na 
tion  the  differences  of  opinion  and  interest  in  this  economic 
institution.  These  differences  were  culminated  over  a  half 
century  later  in  an  internecine  war. 

The  commercial  articles  of  the  treaty  went  out  of  effect 
by  their  own  stipulation  on  October  28,  1807.  The  entire 
Treaty  of  Amity,  Commerce,  and  Navigation  was  made  null 
and  void  by  the  War  of  1812.  Its  detriments  and  benefits 
have  merged  in  the  march  of  events. 

And  what  position  had  the  treaty  of  1794  in  this  pro 
gress? 

Governments  realize  their  efficiency  through  revolution 
and  reconstruction.  The  Revolution  of  1776  gave  independ 
ence  to  a  new  nation.  The  treaty  of  1794  was  a  factor  in 
the  construction  of  its  international  relations  and  confirmed 
its  status  as  a  sovereign  government. 

Both  events  have  passed  into  history  and,  according  to 
their  importance,  are  enrolled  in  the  annals  of  the  nation. 

121  American  Historical  Eeports,  1901,  Vol.  I,  p.  282. 

122  Vide  supra,  pp.  39-40. 
l-3Ibid.  and  Appendix  C  (3). 


144  [70 

APPENDICES. 


APPENDIX  A. — Extracts  from  the  diplomatic  correspondence  relating 
to  the  Treaty  of  1794. 

APPENDIX  B. — Synopsis  of  the  Treaty  of  Amity,  Commerce,  and  Navi 
gation  between  Great  Britain  and  the  United  States. 

APPENDIX  C. — Extracts  from  the  American  papers  published  by  the 
party  in  opposition  to  the  Treaty. 

APPENDIX  D. — French    diplomatic    correspondence    regarding    Jay's 
Treaty. 

APPENDIX  E. — A  Map,  with  its  consideration  and  explanation,  relat 
ing  to  certain  stipulations  in  the  Treaty  of  1794. 


APPENDIX  A. 

Extracts  from  the  diplomatic  correspondence  relating  to  the  Treaty 
of  1794. 

(1)  May  6,  1794.    Instructions  to  Jay  as  Envoy  Extraordinary. 

(2)  London,  July  11,  1794.    Jay  to  Alexander  Hamilton. 

(3)  London,  November  19,  1794.    Jay  to  Edmund  Randolph. 

(1)  INSTRUCTIONS  TO  JAY  AS  ENVOY  EXTRAORDINARY.124 

"SiR: — The  mission  upon  which  you  are  about  to  enter,  as  Envoy 
Extraordinary  to  the  Court  of  London,  has  been  dictated  by  consider 
ations  of  an  interesting  and  pressing  nature. 

A  full  persuasion  is  entertained  that,  throughout  the  whole  nego 
tiation,  you  will  make  the  following  its  general  objects:  To  keep  alive 
in  the  mind  of  the  British  minister  that  opinion  which  the  solemnity 
of  a  special  mission  must  naturally  inspire,  of  the  strong  agitations 
excited  in  the  people  of  the  United  States,  by  the  disturbed  condition 
of  things  between  them  and  Great  Britain;  to  repel  war,  for  which  we 
are  not  disposed,  and  into  which  the  necessity  of  vindicating  our  honor 
and  our  property  may,  but  can  alone,  drive  us;  to  prevent  the  British 
ministry,  should  they  be  resolved  on  war,  from  carrying  with  them  the 
British  nation;  and,  at  the  same  time,  to  assert,  with  dignity  and 
firmness,  our  rights,  and  our  title  to  reparation  for  past  injuries. 

124  American  State  Papers,  Foreign  Eelations,  Vol.  I,  p.  427. 


71]  145 

I.  One  of  the  causes  of  your  mission  being  the  vexations  and 
spoliations  committed  on  our  commerce  by  the  authority  of  instruc 
tions  from  the  British  government,  you  will  receive  from  the  Secretary 
of  State  the  following  documents.     * 

Compensation  for  all  the  injuries  sustained,  and  captures,  will  be 
strenuously  pressed  by  you.  * 

If  the  British  ministry  should  hint  at  any  supposed  predilection  in 
the  United  States  for  the  French  nation,  as  warranting  the  whole  or 
any  part  of  these  instructions,  you  will  stop  the  progress  of  this  sub 
ject,  as  being  irrelative  to  the  question  in  hand. 

II.  A  second  cause  of  your  mission,  but  not  inferior  in  dignity  to 
the  preceding,  though  subsequent  in  order,  is  to  draw  to  a  conclusion 
all  points  of  difference  between  the  United  States  and  Great  Britain, 
concerning  the  treaty  of  peace. 

III.  It  is  referred  to  your  discretion  whether,  in  case  the  two 
preceding  points  should  be  so  accommodated  as  to  promise  the  contin 
uance  of  tranquillity  between  the  United  States  and  Great  Britain,  the 
subject  of  a  commercial  treaty  may  not  be  listened  to  by  you,  or  even 
broken  to  the  British  ministry.     If  it  should,  let  these  be  the  general 
objects: 

1st.  Eeciprocity  in  navigation,  particularly  to  the  West  Indies  and 
even  to  the  East  Indies. 

2d.  The  admission  of  wheat,  fish,  salt  meat,  and  other  great  sta 
ples,  upon  the  same  footing  with  the  admission  of  the  great  British 
staples  in  our  ports. 

3d.     Free  ships  to  make  free  goods. 

4th.  Proper  security  for  the  safety  of  neutral  commerce  in  other 
respects;  and  particularly: 

By  declaring  provisions  never  to  be  contraband,  except  in  the 
strongest  possible  case,  as  the  blockade  of  a  port;  or,  if  attainable,  by 
abolishing  contraband  altogether; 

By  defining  a  blockade,  if  contraband  must  continue  in  some  de 
gree,  as  it  is  defined  in  the  armed  neutrality; 

By  restricting  the  opportunities  of  vexation  in  visiting  vessels;  and 

By  bringing  under  strictest  management  privateers;  and  expediting 
recoveries  against  them  for  misconduct. 

5th.  Exemption  of  emigrants,  and  particularly  manufacturers, 
from  restraint. 

6th.     Free  exports  of  arms  and  military  stores. 

7th.  The  exclusion  of  the  terms  "the  most  favored  nation,"  as 
being  productive  of  embarrassment. 

8th.  The  convoy  of  merchant  ships  by  the  public  ships  of  war, 
where  it  shall  be  necessary,  and  they  be  holding  the  same  course. 


146  [72 

9th.  It  is  anxiously  to  be  desired  that  the  fishing  grounds  now 
engrossed  by  the  British  should  be  opened  to  the  citizens  of  the  United 
States. 

10th.  The  intercourse  with  England  makes  it  necessary  that  the 
liabilities  arising  from  alienage  in  cases  of  inheritance  should  be  put 
upon  a  liberal  footing,  or  rather  abolished. 

llth.  You  may  discuss  the  sale  of  prizes  in  our  ports  while  we 
are  neutral;  and  this  perhaps  may  be  added  to  the  considerations 
which  we  have  to  give,  besides  those  of  reciprocity. 

12th.  Proper  shelter,  defence,  and  succor  against  pirates,  ship 
wreck,  etc. 

13th.  Full  security  for  the  retiring  of  the  citizens  of  the  United 
States  from  the  British  dominions  in  case  a  war  should  break  out. 

14th.  No  privateering  commissions  to  be  taken  out  by  the  subject 
of  the  one,  or  citizens  of  the  other  party,  against  each  other. 

15th.  Consuls,  etc.,  to  be  admitted  in  Europe,  the  West  and  East 
Indies. 

16th.  In  case  of  an  Indian  war,  none  but  the  usual  supplies  in 
peace  shall  be  furnished. 

17th.  In  peace,  no  troops  to  be  kept  within  a  limited  distance 
from  the  lakes. 

18th.  No  stipulation  whatsoever  is  to  interfere  with  our  obliga 
tions  to  France. 

19th.     A  treaty  is  not  to  continue  beyond  fifteen  years. 

IV.  This  enumeration  presents  generally  the  objects  which  it  is  de 
sirable  to  comprise  in  a  commercial  treaty ;  not  that  it  is  expected  that 
one  can  be  effected  with  so  great  a  latitude  of  advantages.  *  *  * 

But  if  a  treaty  of  commerce  cannot  be  formed  upon  a  basis  as  ad 
vantageous  as  this,  you  are  not  to  conclude  or  sign  any  such,  it  being 
conceived  that  it  would  not  be  expedient  to  do  anything  more  than  to 
digest  with  the  British  ministry  the  articles  of  such  a  treaty  as  they 
appear  willing  to  accede  to,  referring  them  here  for  consideration  and 
further  instruction  previous  to  a  formal  conclusion." 

(2)  JAY  to  ALEXANDER  HAMILTON. 

London,  July  11,  1794. 

*  *  *  "Appearances  continue  to  be  singularly  favorable,  but 
appearances  merit  only  a  certain  degree  of  circumspect  reliance.  The 
delays  occasioned  by  the  new  arrangement  of  the  ministry  cannot  be 
of  long  continuance.  Circumstances  must  soon  constrain  them  to  form 
some  ultimate  system  relative  to  the  United  States;  and  although  I 
have  much  reason  to  hope  that  it  will  be  favorable  to  our  wishes,  yet  I 
confess  I  am  not  without  apprehensions  that  certain  points  not  by  us 


73]  147 

to  be  yielded  will  occasion  difficulties  hard  to  surmount.  Personally  I 
have  every  reason  to  be  satisfied,  and  officially  I  have  as  yet  no  reason 
to  complain. 

*#  •**•)(•  *  •£ 

I  will  endeavor  to  accommodate  rather  than  dispute;  and  if  this 
plan  should  fail,  decent  and  firm  representations  must  conclude  the 
business  of  my  mission.  As  yet  I  do  not  regret  any  step  I  have  taken. 
I  wish  I  may  be  able  to  say  the  same  at  the  conclusion. ' ' 

(3)  JAY  to  EDMUND  EANDOLPH. 
London,  November  19,  1794. 

"Sin: — The  long  expected  treaty  accompanies  this  letter.  *  *  * 
The  difficulties  which  retarded  its  accomplishment  frequently  had  the 
appearance  of  being  insurmountable;  they  have  at  last  yielded  to 
modifications  of  the  articles  in  which  they  existed,  and  to  that  mutual 
disposition  to  agreement  which  reconciled  Lord  Grenville  and  myself 
to  an  unusual  degree  of  trouble  and  application.  They  who  have 
leveled  uneven  grounds  know  how  little  of  the  work  afterwards  ap 
pears.  *  *  * 

My  opinion  of  the  treaty  is  apparent  from  my  having  signed  it.  I 
have  no  reason  to  believe  or  conjecture  that  one  more  favorable  to  us 
is  attainable. 

Perhaps  it  is  not  very  much  to  be  regretted  that  all  our  differences 
are  merged  in  this  treaty,  without  having  been  decided;  disagreeable 
imputations  are  thereby  avoided,  and  the  door  of  conciliation  is  fairly 
and  widely  opened  by  the  essential  justice  done,  and  the  conveniences 
granted  to  each  other  by  the  parties. 

The  term  limited  for  the  evacuation  .of  the  posts  could  not  be  re 
stricted  to  a  more  early  day;  that  point  has  been  pressed. 

************ 

The  6th  article  was  sine  qua  new,  and  is  intended  as  well  as  cal 
culated  to  afford  that  justice  and  equity  which  judicial  proceedings 
may,  on  trial,  be  found  incapable  of  affording.  *  *  * 

The  credit  of  some  of  the  States  having,  to  my  knowledge,  suffered 
by  appearances  of  their  being  favorable  to  the  idea  of  sequestrating 

British   debts   on   certain   occasions,   the   10th   article  will   be  useful. 

*     *     * 

The  duration  of  this  article  (12)  is  short,  but  if  we 
meet  the  disposition  of  this  country  to  good  humor  and  cordiality,  I 
am  much  inclined  to  believe  it  will  be  renewed.  The  duration  of  the 
treaty  is  connected  with  the  renewal  of  that  article,  and  an  oppor 
tunity  will  then  offer  for  discussing  and  settling  many  important 
matters.  *  *  * 


148  [74 

It  will  give  you  great  pleasure  to  hear  that  great  reserve  and  deli 
cacy  have  been  observed  respecting  our  concerns  with  France." 


APPENDIX  B. 

Synopsis  of  the  Treaty  of  Amity,  Commerce,  and  Navigation  be 
tween  Great  Britain  and  the  United  States.125 

The  introduction  designates  the  purpose  of  the  treaty  and  names 
the  plenipotentiary  from  each  county  empowered  to  negotiate  such. 

ARTICLE  I.  Establishes  peace  and  friendship  between  his  Britan 
nic  Majesty  and  the  United  States. 

ARTICLE  II.  His  Majesty  consents  to  withdraw  all  his  troops  and 
garrisons  from  all  posts  and  places  within  the  boundary  lines  assigned 
by  the  treaty  of  peace  to  the  United  States.  The  evacuation  is  to  take 
place  on  or  before  the  1st  of  June,  1796.  All  settlers  in  those  parts  to 
enjoy  private  property  rights  and  become  citizens  of  the  United  States 
in  one  year  unless  allegiance  is  declared  to  His  Britannic  Majesty. 

ARTICLE  III.  Allowrs  to  His  Majesty's  subjects  and  the  citizens  of 
the  United  States,  and  to  the  Indians  dwelling  on  either  side  of  the 
said  boundary  line,  freedom  to  pass  and  repass  by  land  or  inland  navi 
gation  into  the  respective  territories  of  the  two  parties.  The  country 
\vithin  the  limits  of  the  Hudson's  Bay  Company  is  excepted.  Vessels 
belonging  to  the  United  States  are  not  to  be  admitted  into  the  ports 
of  His  Majesty's  said  territories,  nor  British  vessels  from  the  sea  into 
rivers  of  the  United  States  beyond  the  highest  ports  of  entry  for 
foreign  vessels  from  the  sea.  The  navigation  of  the  Mississippi,  how 
ever,  is  to  be  entirely  free.  Goods  and  merchandise  shall  be  conveyed 
into  the  territories  of  His  Britannic  Majesty  by  American  citizens,  and 
into  the  territories  of  the  United  States  by  British  subjects,  subject 
to  the  regulations  established  by  both  parties.  The  article  is  intended 
i.tp'  render  local  advantages  to  each  country. 

AltfiCLE  IV.  Provides  for  a  joint  survey  of  the  Mississippi  River 
to  determine  the  northwest  boundary  line. 

ARTICLE  V.  Authorizes  a  commission  of  three  members  to  deter 
mine  which  is  the  river  St.  Croix,  intended  by  the  Treaty  of  Peace  of 
1783  as  part  of  the  northeast  boundary  line. 

ARTICLE  VI.  Gives  to  British  subjects  the  power  of  recovering 
debts  due  to  them  by  American  citizens  previous  to  the  treaty  of 
peace;  which  debts  have  not  been  recovered  hitherto,  on  account  of 
some  legal  impediments.  The  United  States  agree  to  make  full  and 


jn  fuii  may  be  found  in  the  Annual  Register,  1795, 
and  State  Papers,  Foreign  Relations,  Vol.  I. 


75]  149 

complete  compensation  to  the  creditors  who  have  suffered  by  those 
impediments.     The  amount  of  the  losses  and  damages  is  to  be  ascer 
tained  by  five  commissioners — two  to  be  appointed  by  Great  Britain, 
two  by  the  President  of  the  United  States,  and  one  by  the  other  four. 
*     *     *     Three  of  the  said  commissioners  shall  constitute  a  board,  ancT 
shall  have  power'  to  do  any  act  appertaining  to  the  said  commission, 
provided  that  one  of  the  commissioners  named  on  each  side,  and  the 
fifth  commissioner  shall  be  present,  and  all  decisions  shall  be  made  by    I 
the  majority  of  the  voices  of  the  commissioners  then  present;  eighteen  / 
months  from  the  day  on  which  the  said  commissioners  shall  form  a  ( 
board,  and  be  ready  to  proceed  to  business,  are  assigned  for  receiving  V 
complaints  and  applications;  but  they  are  nevertheless  authorized,  in    ' 
any  particular  cases,  in  which  it  shall  appear  to  them  to  be  reasonable  , 
and  just,  to  extend  the  said  term  of  eighteen  months  for  any  term  not  I 
exceeding  six  months  after  the  expiration  thereof.     The  said  commis-  i 
sioners  shall  first  meet  at  Philadelphia,  but  they  shall  have  power  to  \ 
adjourn  from  place  to  place  as  they  shall  see  cause^ 

The  award  of  the  said  commissioners,  or  any  three  of  them  as 
aforesaid,  shall  in  all  cases  be  final  and  conclusive. 

ARTICLE  VII.  Allows  indemnification,  by  the  British  government, 
to  such  of  the  citizens  of  the  United  States  as  have  suffered,  during 
the  late  war,  by  irregular  and  illegal  captures.  The  United  States  also 
agrees  to  indemnify  British  subjects  for  irregular,  illegal  captures 
taken  by  American  ships  during  the  war.  Five  commissioners,  acting 
under  the  same  directions  and  oath  as  those  in  the  preceding  article, 
are  to  sit  at  London  upon  all  cases  which  have  not  been  agreeably 
settled  according  to  the  letter  from  Mr.  Jefferson  to  Mr.  Hammond, 
Philadelphia,  September  5,  1793. 

ARTICLE  VIII.  Provides  for  the  expenses  of  the  commissioners  in 
the  sixth  and  seventh  articles  above  and  the  filling  of  their  vacancies. 
ARTICLE  IX.  It  is  agreed  that  British  subjects  who  now  hold 
lands  in  the  territories  of  the  United  States,  and  American  citizens 
who  now  hold  lands  in  the  dominions  of  His  Majesty,  shall  continue 
to  hold  them  according  to  the  nature  and  terms  of  their  respective 
estates  and  titles  therein;  and  may  grant,  sell,  or  devise  the  same  to 
whom  they  please,  in  like  manner  as  if  they  were  natives;  and  that 
neither  they  nor  their  heirs  or  assigns  shall,  so  far  as  may  respect 
the  said  lands  and  the  legal  remedies  incident  thereto,  be  regarded  as 
aliens. 

ARTICLE  X.  Stipulates  no  debt,  shares  of  public  money,  or  public 
or  private  bank  funds  shall  ever  be  confiscated  or  sequestered  in  na 
tional  differences. 

ARTICLE  XI.  Guarantees  perfect  liberty  of  navigation  and  com 
merce  among  people  of  both  countries  under  the  following  articles. 


150  [76 

ARTICLE  XII.  Allows  the  citizens  of  the  United  States  to  carry 
the  produce  of  the  United  States  to  the  West  Indies,  in  vessels  of  not 
more  than  seventy  tons  burden.  The  citizens  are  also  allowed  to  carry 
away  the  produce  of  the  islands  to  the  territories  of  the  United  States 
alone.  This  article  is  to  continue  in  force  for  two  years  after  the 
present  war,  when  further  regulations  are  to  be  made.  (This  article 
was  suspended  by  the  resolution  of  the  Senate  advising  ratification, 
and  the  suspension  was  agreed  to  by  Great  Britain.) 

ARTICLE  XIII.  His  Majesty  consents  that  vessels  belonging  to 
American  citizens  shall  be  admitted  to  all  seaports  of  the  British  ter 
ritories  in  the  East  Indies.  Said  citizens  may  freely  carry  on  a  trade 
between  said  territories  and  the  United  States,  in  all  articles  of  which 
the  importation  or  exportation  is  not  entirely  prohibited.  Provided 
only,  that  it  shall  not  be  lawful  for  them  in  time  of  war  between 
Great  Britain  and  any  other  state  to  export  from  said  territories, 
without  permission,  any  military  or  naval  stores  or  rice.  Coasting 
trade  is  prohibited  and  no  higher  duties  are  to  be  exacted  than  payable 
on  British  vessels. 

ARTICLE  XIV.  Eeciprocal  and  perfect  liberty  of  commerce  and 
navigation  is  guaranteed  between  the  United  States  and  the  European 
territories  of  Great  Britain. 

ARTICLE  XV.  No  higher  duties  shall  be  paid  by  the  ships  or  mer 
chandise  of  the  one  party  in  the  ports  of  the  other  than  the  duties 
paid  by  other  nations.  No  higher  duties  shall  be  paid  upon  impor 
tation  or  exportation  than  the  duties  paid  on  the  importation  or  ex 
portation  of  similar  articles,  the  product  of  other  nations. 

ARTICLE  XVI.  Eelates  to  the  appointment  of  consuls  for  the  pro 
tection  of  trade. 

ARTICLE  XVII.  Any  vessel  captured  or  detained  on  suspicion  of 
having  enemy's  goods  is  to  be  taken  to  the  nearest  port,  and  if  any 
such  property  is  found,  it  alone  is  to  be  taken  and  the  vessel  allowed 
to  proceed.  Delay  is  to  be  prevented  or  properly  compensated. 

ARTICLE  XVIII.  Decides  what  articles  the  term  contraband  can 
be  applied  to.  When  provisions  are  regarded  as  such  and  seized,  the 
owners  shall  be  made  speedy  indemnification.  Any  vessel  sailing  for 
a  port  with  a  cargo  not  contraband,  not  knowing  the  port  blockaded, 
will  be  allowed  to  put  to  any  other  port  unless  she  again  try  to  enter, 
when  she  will  be  held,  and  when  such  port  is  surrendered  returned  to 
the  owners. 

ARTICLE  XIX.  Provides  for  the  security  of  the  respective  sub 
jects  and  citizens,  and  for  the  preventing  of  injuries  by  men-of-war. 

ARTICLE  XX.  Eelates  to  the  refusal  of  the  respective  parties  to 
receive  pirates  into  any  harbors  or  towns,  and  to  the  seizure  of  goods 
and  merchandise  taken  by  pirates. 


77]  151 

ARTICLE  XXI.  Stipulates  that  the  subjects  and  citizens  of  two 
nations  shall  not  do  any  acts  of  hostility  against  each  other,  and  shall 
not  accept  commissions  from  foreign  states  or  princes,  to  commit 
hostilities. 

ARTICLE  XXII.  Neither  contracting  party  shall  authorize  any  act 
of  reprisal  against  the  other,  on  complaint  of  injuries  or  damages, 
until  the  first  party  has  presented  a  statement  as  proof  thereof. 

ARTICLE  XXIII.  Eelates  to  the  treatment  of  ships,  officers,  and 
crews,  in  the  respective  ports  of  the  two  powers. 

ARTICLE  XXIV.  Provides  that  privateers  of  nations  at  enmity 
with  either  of  the  two  powers  shall  not  arm  their  ships  in  the  respec 
tive  ports  of  the  two  powers,  or  sell  what  they  have  taken. 

ARTICLE  XXV.  It  is  lawful  for  ships  of  war  and  privateers  to 
take  their  captured  ships  into  either  party's  ports  and  be  there  sub 
ject  to  certain  privileges  and  obligations  and  are  to  be  assisted  to  an 
early  departure.  No  merchant  vessel  is  to  be  taken  within  cannon- 
shot  of  the  coast,  or  full  satisfaction  is  guaranteed. 

ARTICLE  XXVI.  In  case  of  war  merchants  and  citizens  or  sub 
jects  of  one  are  permitted  to  reside  in  the  territory  of  the  other  nation 
and  to  continue  their  trade. 

ARTICLE  XXVII.  Agrees  that  the  two  powers  shall  respectively 
deliver  up  persons  charged  with  murder  and  forgery. 

ARTICLE  XXVIII.  Alluding  to  the  preceding  articles,  this  states 
that  the  first  ten  articles  shall  be  permanent,  and  that  the  subsequent 
articles  (the  twelfth  excepted)  shall  be  limited  in  their  duration  to 
twelve  years.  The  treaty  is  to  be  binding  and  obligatory  as  soon  as  it 
is  ratified. 

GRENVILLE  (L.  S.) 
November  19,  1794.  JOHN  JAY  (L>  s>) 

HP 

EXPLANATORY  ARTICLES. 

Article  explanatory  of  Article  III  of  the  Treaty: 

May  9,  1796.— This  article  related  to  the  passage  of  Indians  into 
the  territories  of  both  nations. 

Article  explanatory  of  Article  V  of  the  Treaty : 

June  5,  1798.— This  article  authorized  the  commission  under  Art 
icle  V  to  designate  the  source  of  the  St.  Croix  Eiver  in  any  manner 
they  saw  fit  otherwise  than  by  latitude  and  longitude. 

Convention  for  the  payment  of  indemnities  and  settlement  of 
debts : 

January  8,  1802.— This  convention  of  five  articles  provides  for  the 
payment  to  Great  Britain  of  £600,000  in  full  for  the  claims  submitted 


152  [78 

under  Article  VI  of  the  Treaty  of  1794,  and  for  the  continuance  of  the 
commission  under  Article  VII ;  and  it  was  agreed  the  awards  should  be 
paid  in  three  annual  installments;  furthermore,  that  creditors  of  either 
country  should  meet  with  no  impediment  in  the  collection  of  their 
debts. 

APPENDIX  C. 

Extracts  from  the  American  papers  published  by  the  party  in  oppo 
sition  to  the  treaty. 

(1)  Extract  from  the  New  York  Journal,  August  2,  1794. 

(2)  Proceedings  in  Philadelphia  according  to  the  Democratic 

Printer,  July  4,  1795. 

(3)  The  Richmond  Notice,  July  31,  1795. 

(1)  EXTRACT  FROM  THE  New  York  Journal. 

August  2,  1794. 

' '  The  late  appointment  of  John  Jay,  as  Envoy  Extraordinary  to  the 
Court  of  London,  brought  so  strongly  to  the  recollection  of  the  people 
of  this  country  his  former  iniquitious  attempt  to  barter  away  their 
most  valuable  right,  that  they  could  not  refrain  from  openly  testifying 
their  abhorrence  of  the  man,  whose  appointment,  at  this  critical  period 
of  their  affairs,  they  consider  as  tragically  ominous.  Although  they 
had  not  forgotten,  nor  even  faintly  remembered,  his  former  act  of 
treason  against  them;  yet  they  hoped,  from  the  office  he  filled,  he  was 
in  as  harmless  a  situation  as  he  could  be  placed;  and  that  no  effort 
of  power  or  policy  could  drag  him  forward,  so  long  as  he  held  his 
office,  and  set  him  once  more  to  chaffering  with  our  rights.  With 
these  impressions,  a  number  of  respectable  citizens,  of  this  place  and 
its  vicinity,  on  Saturday  last,  ordered  a  likeness  of  this  evil  genius 
of  western  America  to  be  made,  which  was  soon  well  executed.  At 
the  appointed  hour,  he  was  ushered  forth  from  a  barber's  shop, 
amidst  the  shouts  of  the  people,  dressed  in  a  courtly  manner,  and 
placed  erect  on  the  platform  of  the  pillory.  In  his  right  hand  he  held 
uplifted  a  rod  of  iron ;  in  his  left,  he  held  extended  Swift 's  last  speech 
in  Congress,  on  the  subject  of  British  depredation,  on  one  side  of 
which  was  written: 

'Nemo  repente  fuit  turpissimus. '    Juv.  Sat.  IV,  33. 

'No  man  e'er  reached  the  heights  of  vice  at  first.' 
And  on  the  other: 

' — non  deficit  alter.'    Virg.  Aen.  6. 

'A  second  is  not  wanting.' 


79]  153 

About  his  neck  was  suspended  by  a  hempen  string  Adam's  defence 
of  the  American  Constitutions,  on  the  cover  of  which  was  written: 
'  Scribere  jussit  aurum. '     Ov.  Ep. 
'  Gold  bade  me  write. ' 

After  exhibiting  him  in  this  condition  for  some  time,  he  was  or 
dered  to  be  guillotined,  which  was  soon  dexterously  executed,  and  a 
flame  instantly  applied  to  him,  which  finding  its  way  to  a  quantity  of 
powder,  which  was  lodged  in  his  body,  produced  such  an  explosion 
that  after  it  there  was  scarcely  to  be  found  a  particle  of  the  disjecta 
membra  Plenipo.  *  *  * 

The  Club  of  Charleston,  South  Carolina,  solicited  an  adoption  of 
the  Jacobin  Club  at  Paris.  They  also  addressed  Consul  Margourit, 
who  had  actually  granted  commissions  to  privateers,  in  defiance  of  the 
President's  proclamation  of  neutrality." 

(2)  PROCEEDINGS  IN  PHILADELPHIA,  ACCORDING  TO  THE  DEMOCRATIC 

PRINTER. 
July  4,  1795. 

"At  Philadelphia,  on  the  4th  of  July  (the  anniversary  of  the  glo 
rious  Independence),  Mr.  Jay  and  the  Senate  were  burnt  in  effigy. 
The  mob,  headed  by  one  Abraham  Coats,  an  old  Whig,  carried  through 
the  streets  a  transparent  painting,  of  which  the  Democratic  printer 
gave  the  following  description:  The  figure  of  John  Jay  was  upon  it. 
The  figure  was  in  full  statue,  holding  in  his  right  hand  a  pair  of  scales, 
containing  in  one  scale  American  Liberty  and  Independence,  kicking 
the  beam;  in  the  other,  British  Gold,  in  extreme  preponderance.  In 
his  left  hand  a  treaty  of  Amity,  Commerce,  and  Navigation,  which  he 
extended  to  a  group  of  Senators,  who  were  grinning  with  pleasure  and 
grasping  at  the  treaty.  From  the  mouth  of  the  figure  issued  these 
words,  ' '  Come  up  to  my  price,  and  I  will  sell  you  my  country. ' '  The 
figure  was  burned  at  Kensington  amid  the  acclamations  of  hundreds 
of  citizens.  Thus  ended  the  procession,  and  thus  terminated  the  anni 
versary  of  American  independence." 

(3)   THE  EICHMOND  NOTICE. 

July  31,  1795. 

Notice  is  hereby  given,  that  in  case  the  treaty  entered  into  by  that 
d — n'd  Arch  Traitor,  J — n  J — y,  with  the  British  tyrant  should  be 
ratified,  a  petition  will  be  presented  to  the  next  General  Assembly  of 
Virginia  at  their  next  session  praying  that  the  said  state  may  recede 
from  the  Union,  and  be  left  under  the  government  and  protection  of 
One  Hundred  Thousand  Free  and  Independent  Virginians. 


154  [80 

P.  S. — As  it  is  the  wish  of  the  people  of  the  said  state,  to  enter 
into  a  treaty  of  amity,  commerce,  and  navigation,  with  any  other  state, 
or  states  of  the  present  Union,  who  are  averse  to  returning  again 
under  the  galling  yoke  of  Great  Britain,  the  printers  of  the  (at  pres 
ent)  United  States  are  requested  to  publish  the  above  notification. 

APPENDIX  D.126 
FRENCH  DIPLOMATIC  CORRESPONDENCE  REGARDING  JAY'S  TREATY. 

(1)  April  14,  1796.    Le  Ministre  Plenipotentiaire  de  la  Repub- 

lique  Franchise  (Adet)  pres  les  Etats  Unis,  Au  Minis 
tre  des  Relations  Exterieures. 

(2)  May  3,  1796.     Le  Ministre  Plenipotentiaire  de  la  Repub- 

lique  Franchise  (Adet)  pres  les  Etats  Unis,  Au  Minis 
tre  des  Relations  Exterieures. 

(3)  June  20,  1796.    Le  Ministre  Plenipotentiaire  de  la  Repub- 

lique  Franchise  (Adet)  pres  les  Etats  Unis,  Au  Minis 
tre  des  Relations  Exterieures. 
(1)  April  14,  1796. 

Citoyen  Ministre:  Nos  amis  enfin  viennent  d 'adopter  uii  Plan 
pour  la  rejection  du  Traite.  Dans  leur  dernier  Comite  Secret,  il  a  ete 
arrete  que  1'on  feroit  adopter  par  la  Chambre  Une  resolution  ConQue 
a  peu  pres  dans  les  termes  suivans :  ' '  Attendu  que  le  Traite  conclue 
entre  la  Grande  Bretagne  et  les  Etats  unis  paroit  injurieux  aux  in- 
terets  des  Etats;  Attendu  que  la  Chambre  manque  de  documens  neces- 
saires  pour  en  porter  un  jugement  different;  Attendu  que  tous  les 
renseignements  qu'elle  a  demande  a  cet  egard  lui  ont  e"te  refuses,  il 
est  resolu  qu  'elle  ne  s  'occupera  pas  des  Loix  relatives  a  ce  Traite. ' ' 

Bientot,  Citoyen  Ministre,  cette  resolution  sera  soumise  a  la  Cham 
bre  et  aura  la  Majorite  en  sa  faveur,  s'il  faut  en  croire  les  Membres 
les  plus  influans  du  parti  republicain.  Us  m'ont  assure  qu'ils  etoient 
certains  de  cinquante  sept  voix  et  que  neuf  membres  de  la  Minorite 
etoient  incertains  sur  le  parti  qu'ils  avoient  a  prendre. 

Quoique  nos  amis  ne  paroissent  pas  douter  du  succes,  je  n'ose  pas 
vous  le  garantir,  Citoyen  Ministre;  Je  connois  trop  le  caractere  des 
Americains  pour  compter  sur  un  acte  de  vigueur  de  la  Chambre  des 
representans ;  et  pour  vous  parler  avec  franchise,  je  serois  etonne,  si 
elle  prend  cette  attitude  fiere  que  veulent  lui  donner  les  chefs  du  parti 
Republicain. 

126  The  French  Correspondence,  regarding  the  treaty  of  1794,  is 
abundant  and  much  in  detail.  Enough  of  it  is  given  in  this  Appendix 
to  show  the  interest  and  trend  of  French  action. 


81]  155 

Toute  incertitude  cependant  cessera  bientot,  Citoyen  Ministre;  la 
decision  de  la  question  qui  s'agite  maintenant  a  la  Chambre,  nous  fera 
presager  le  sort  de  la  resolution  qui  doit  terminer  toutes  les  discus 
sions  relatives  au  Traite  de  Jay.  Un  membre  de  la  Minorite  a  pro 
pose  hyer  que  la  Chambre  des  representans  fit  les  loix  necessaires  pour 
1 'execution  des  Traites  Conclus  avec  Alger,  la  Grande  Bretagne,  1'Es- 
pagne  et  quelques  Nations  indiennes.  Cette  proposition  a  excite  des 
debats  plus  vifs  que  ceux  qui  avoient  eu  lieu  jusqu'a  ce  jour;  plu- 
sieurs  amendemens  ont  ete  proposes ;  la  division  a  ete  demandee ;  mais 
le  Comite  general  n'a  pris  encore  aucune  determination. 

Si  celle  qu'il  adoptera  en  conforme  aux  viies  de  nos  amis,  s'ils  ont 
la  majorite  dans  cette  circonstance,  il  y  a  lieu  de  croire  qu'ils  1'obtien- 
dront,  lorsqu'il  s'agira  de  la  grand  resolution;  car  les  hommes  qui  se 
seront  prononces  jusqu'a  ce  Moment  dans  le  meme  sens,  ne  pourront 
plus  changer  d 'opinion  sans  se  deshonorer. 

Signe  P.  A.  ADET. 
(2)   May  3,  1796. 

Citoyen  Ministre:    C'en  est  fait;  le  parti  de  1 '  Angleterre  triomphe, 
et  la  Chambre  des  representans  a  arrete  avant  hyer  qu'elle  feroit  la 
loi  relative  a  1  'execution  du  Traite  avec  1  'Angleterre.    Vous  trouverez 
cyjoint  1'extrait  de  sa  seance,  et  vous  verrez  qu'il  s'en  est  peu  fallu 
que  nos  amis  ne  restassent  maitres  du  champ  de  bataille;  Us  etoient 
certains  de  la  Victoire,  Citoyen  Ministre,  si  le  Gouvernement  franc.ois 
s'etoit  explique  sur  le  traite,   si  les  bruits  de  mon  rappel  n 'etoient 
venus  appuyer  les  raisons  des  membres  qui  interpretoient  le  silence  de 
la  France  en  faveur  du  Gouvernement  Americain,  et  qui  avoient  grand 
soin  de  dire  que  1  'on  avoit  en  consequence  rien  a  redouter  de  la  France, 
et  tout  a  craindre  de  PAngleterre.    En  vain  ai-je  fait  tous  mes  efforts 
pour  detruire  ces  fausses  impressions;  je  n'ay  pu  reussir:  et  quelques 
moyens  que  j  'eusse  pu  employer  de  concert  avec  nos  amis,  m  'etoit-il 
possible  de  ruiner  les  manoeuvres  et  les  intrigues  du  Ministre  d  'Angle- 
terre  qui  pouvoit  user  de  deux  armes  tou jours  vietorieuses,  la  menace 
et  la  corruption.     Elles  ne  luy  ont  ete  que  trop  utiles,  s'il  faut  que 
j'en  croie  les  rapports  qui  m'ont  ete  faits;  II  n'est  pas  le  seul  qui 
s'en  soit  servi;   Cent  Marchands,  m'a-t-on  assure,  ont  fait  une  sou- 
scription  de  500  Dollars  chacun,  pour  acheter  des  souffranges  en  faveur 
du  Traite.     Les  ont-ils  distribues,  ont-ils  reussi,  1  'argent  ou  la  crainte 
de  1'Angleterre  ont-ils  decide"  la  question?  je  ne  puis  vous  expliquer 
ce  mystere.    Vainement  ai-je  cherche  a  le  penetrer.    Tout  le  monde  se 
tait,  et  ceux  qui  avoient  parle  de  la  souscription  des  marchands  il  y  a 
quelques  jours,  gardent  aujourd'hui  le  silence,  ne  repondent  que  d'une 
maniere  ambigue  aux  Questions  qu'on  leur  fait,  et  laissent  voir  par 


156  [82 

la  qu'on  leur  a  commande  une  discretion  a  laquelle  ils  ne  s'etoient  pas 
cru  d'abord  obliges. 

Je  ne  saurois  vous  peindre,  Citoyen  Ministre,  le  chagrin  de  nos 
amis  dans  les  circonstances  actuelles;  ils  voyent  la  liberte  fortement 
menacee  chez  eux,  ils  voyent  le  royalisme  qui  ne  s'etait  avance  que 
lentement,  pret  a  faire  des  progres  rapides.    Deja  ses  apotres  parlent, 
deja  les  Senateurs  et  John  Adams  a  leur  tete,  disent  hautement  que 
la  monarchic  est  le  seul  Gouvernement  convenable  a  tous  les  Peuples. 
Un  Senateur  de  la  minorite  m'a  rapporte  confidemment  qu'un  de  ses 
collegues  lui   disoit  un  jour.     Nous  vous  connoissons,  vous  ne  serez 
jainais  sujet;  il  faudra  vous  couper  le  cou  ou  vous  faire  roi.     Nos 
amis  voyent  1'orage  destructeur  de  1'egalite  se  former  peu  a  peu;  ils 
auroient  pu  aisement  dans  les  circonstances  actuelles  le  dissiper;  ils 
ne  savent  si  plus  tard  ils  en  auront  la  puissance.     Ils  craignent  de 
succomber  au  milieu  de  leurs  efforts  ou  de  ne  pouvoir  retablir  la  liberte 
qu  'en  parcourant  les  diverses  periodes  d  'une  revolution  dont  on  ne  peut 
calculer  les  effets  ni  determiner  la  duree.     Tant  d'elemens  divers  peu- 
vent  etre  opposes  Pun  a  1'autre  dans  les  mouvemens  d'une  fermenta 
tion  interieure;  1 'influence  des  interets  Europeens  peut  agir  de  telle 
sorte  qu  'ils  ne  portent  pas  sans  etre  eff  rayes  leurs  regards  sur  1  'avenir. 
Ils  voyent  deja  le  Peuple  Americain  en  armes  combattant  pour  la 
royaute,  et  la  Republique  arroser  de  son  sang  les  campagnes  qu'elle 
fertilisoit  de  ses  sueurs;  cette  population  d'esclaves  qu'elle  fertilisoit 
de  ses  seueurs;  cette  population  d'esclaves  qu'elle  renferme  dans  son 
sein,   ces  tribus   d'Indiens   qui  1'entourent,  instrumens   dont   1 'ambi 
tion,  la  fureur,  la  vengeance  peuvent  s'emparer,  ajoutent  encore  aux 
maux  qu'il  se  fera  lui-meme  si  des  evenemens  qu'on  n'ose  esperer  ne 
viennent  pas  inopinement  a  son  secours.     Et  nous,  Citoyen  Ministre, 
qui  ne  pouvons  esperer  de  tirer  des  avantages  de  ce  pays  qu'autant  que 
le    parti    republicain    dominera,    a    quoi    devons    nous    nous    attendre 
aujourd'hui?     Nos   interets  vont   etre  plus  violemment   froisses   que 
jainais.     On  nous  a  desservi  constamment  sous  le  manteau  de  la  neu- 
tralite.   Aujourd'hui  on  le  fera  ouvertement;  on  n'usera  plus  de  strata- 
genie  ;  on  n  'invoquera  plus  les  ressources  de  la  Chicane,  les  secours  de 
la  tourbe  devorante  des  gens  de  loi,  la  partialite  des  Tribunaux;   on 
n'en  appellera  aux  Traites  Anglais  dans  tous  les  cas  ou  nous  recla- 
merons  contre  les  favours  accordees  a  nos  ennemis;  nous  les  verrons 
jouir   des  avantages  que  nous  etions  assures  exclusivement  par  nos 
Traites,  et  nous  en  serons  prives  nous  memes.     Deja,  je  vois  que  1'on 
se  dispose  a  empecher  les  corsaires  de  vendre  leurs  prises  aux  Etats 
Unis.     Deja  le   Consul  Anglais   a   Charleston   a   demande  qu'on  fit 
arreter  la  vente  d'une  prise  faite  par  un  de  nos  corsaires,  non  par- 
cequ'il  avoit  ete  arme  aux  Etats  Unis,  mais  parceque  1 'article  25  du 


83]  157 

Traite  conclu  avec  la  Grande  Bretagne  empeche  les  ennemis  de  cette 
puissance  d'amener  et  de  conduire  leurs  prises  aux  Etats  Unis.  Les 
Officiers  du  Gouvernement  he"sitent,  ils  n'ont  pas  dissimule  leur  em- 
barras  a  notre  consul,  et  cependant  le  meme  article  25  du  Traite 
Anglais  leur  dicte  leur  decision;  mais  ils  craignent  de  deplaire  a 
PAngleterre,  et  je  ne  doute  pas  de  voir  realiser  ce  que  j'avois  prevu 
dans  mon  N°  lre  au  Comite  de  Salut  public,  sur  1 'admission  de  nos 
prises  aux  Etats  Unis,  a  cette  violation  de  nos  traites,  sans  doute  on 
ajoutera  de  nouvelles  vexations,  et  nous  verrons  la  nation  Franchise 
triomphante  et  respectee  en  Europe,  recevoir  ici  des  affronts  d'un  gou- 
vernement  timide  et  lache  que  la  crainte  seuls  gouverne,  et  qui 
s'humilie  tou jours  devant  la  main  qui  le  frappe.  Mais,  Citoyen  Minis- 
tre,  devons  nous  souffrir  que  ce  gouvernement  qui  a  trahi  notre  bonne 
foi,  qui  s'est  joue  de  notre  moderation,  joigne  de  nouveaux  outrages 
a  ses  perfidies,  et  pour  parvenir  a  1 'execution  de  ses  pro  jets,  force  le 
Gouvernement  Francis  de  rompre  avec  lui?  Non,  sans  doute,  Pin- 
teret  de  notre  gloire,  de  notre  dignite,  Pinteret  meme  du  peuple 
Americain,  que  nous  devons  sauver  de  Poppression  comme  nous  y 
avons  arrache  le  peuple  Batave,  nous  impose,  ce  me  semble,  Pobliga- 
tion  de  mettre  un  frein  a  Paudace  du  parti  Anglais  et  de  tourner 
contre  lui-meme  les  armes  dont  il  s'est  servi  centre  nous. 

En  effet,  Citoyen  Ministre,  Qui  a  engage  le  Gouvernement  a  faire 
un  Traite  avec  Londres?  Le  parti  Anglois.  Qui  a  fait  ratifier  le 
Traite  par  Washington?  Le  parti  Anglois.  Qui  s'est  agite  pour 
faire  passer  ce  traite  a  la  Chambre  des  representans  ?  Le  meme  parti. 
De  quels  gens  est-il  compose?  Des  Anciens  Torrys,  des  negocians 
venus  de  la  Grande  Bretagne,  des  Presidens,  Directeurs  et  Interesses 
de  la  Banque,  des  compagnies  d 'assurance  des  Marchands.  Ces  hom- 
mes  seuls  ont  des  interets  sur  les  batimens  expedies  en  Angleterre ;  ce 
ne  sera  done  que  sur  ces  hommes  que  peseront  les  mesures  que  je  vous 
propose,  et  ce  ne  sera  pas  le  peuple  n'a  rien  a  se  reprocher  qui  en 
souffrira.  *  *  * 

Je  ne  sais  pas,  Citoyen  Ministre,  comment  il  seroit  possible  autre- 
rnent,  de  parer  aux  inconveniens  qui  naissent  pour  nous  de  1  'union  des 
Etats  Unis  avec  la  Grande  Bretagne;  comment  nous  pourrons  regagner 
ce  que  nous  avons  perdu  par  notre  faute,  la  preponderance  a  laquelle 
nous  avions  tant  de  droits.  Une  rupture  conduiroit-elle  a  ce  but?  Non, 
sans  doute;  le  gouvernement  saisiroit  avec  empressement  eette  occa 
sion  pour  eloigner  a  jamais  le  peuple  de  la  France,  pour  le  lier  plus 
etroitement  avec  PAngleterre.  *  *  * 

II  faut,  je  pense,  Citoyen  Ministre,  ne  pas  perdre  cet  objet  de  vue, 
et  nous  rappeller  que  si  la  France  est  agricole,  elle  est  aussi  manu- 
facturiere,  qu'elle  a  besoin  d 'exporter  le  produit  de  son  industrie; 


158  [84 

que  ce  vaste  continent  presents  des  debouches  infinis,  si  elle  sait  se 
les  assurer,  et  qu'y  menageant  avec  soin  ses  interets,  elle  peut  s'appro- 
visionner  seule  tout  le  terns  ou  il  n'aura  tas  de  manufacture,  et  le 
terns  est  oncore  eloigne.  Ces  diverses  considerations  viennent  done  a 
1'appui  de  ma  proposition  et  me  la  font  regarder  comme  seule  admis 
sible  dans  ce  moment  surtout,  ou  nous  ne  devons  pas  chercher  une 
nouvelle  guerre,  et  ou  1'honneur  et  1'interet  de  la  nation  ne  me  parois- 
sent  pas  permettre  de  garder  le  silence  sur  la  conduite  du  gouverne- 
ment  Americain. 

(3)   June  20,  1796. 

On  vient  de  me  procurer  une  copie  des  Instructions  de  Jay  a  lui 
donnees  par  le  Secretaire  d'Etat,  lors  de  son  depart  pour  1 'Angleterre. 
Je  m'empresse  de  vous  les  envoyer. 

Si  vous  vous  donnez  la  peine  de  les  comparer  avec  le  Traite  que  CP 
Ministre  a  conclu  avec  le  Ministre  Anglais,  vous  verrez,  Citoyen  Minis- 
tre,  qu'il  a  pris  une  marche  toute  opposee  a  celle  qui  lui  etait  traeee; 
et  qu'il  a  souscrit  a  des  conditions  qu'il  ne  devait  pas  accepter. 

Quel  motif  a  pu  determiner  Jay  a  recevoir  la  loi  du  Ministre 
Anglais?  Usant  de  la  latitude  qui  lui  etait  donnee  par  un  des  articles 
de  ses  Instructions,  a-t-il  substitue  sa  volonte  individuelle  aux  vo- 
lontes  bien  exprimees  de  son  Gouvernement ?  L 'affection  qu'il  porte 
a  1' Angleterre  a-t-elle  triomphe  seule  de  son  devoir?  la  corruption 
a-t-elle  agi  sur  lui?  ou  etait-il  porteur  d 'instructions  secretes  du  Presi 
dent  ignorees  du  Secretaire  d'Etat  et  connues  seulement  de  Wash 
ington  et  de  son  Conseil  particulier  Hamilton?  Je  serais  tente  de  le 
croire,  Citoyen  Ministre,  autrement  comment  expliquer  la  contradiction 
qui  existe  dans  la  conduite  du  President,  quand  on  le  voit  signer  un 
Traite  contraire  aux  ordres  qu'il  avait  donnees?  Si,  conformement  a 
la  demande  de  la  Chambre  des  Kepresentans,  il  lui  avait  remis  les  In 
structions  et  autres  pieces  relatives  a  la  mission  de  Jay,  on  aurait  deja 
developpe  ce  mystere ;  mais  j  'y  parviendrai  peut  etre,  si  comme  on  me 
1'a  promis,  on  me  montre  la  correspondance  de  Jay  avec  le  Lord  Gren- 
ville  et  les  dernieres  Instructions  que  lui  a  donne  le  President.  Alors, 
Citoyen  Ministre,  je  parlerai  d'apres  des  faits  et  non  sur  de  simples 
conjectures. 

II  est  inutile,  Citoyen  Ministre,  que  j'entre  dans  aucun  detail  sur 
ces  Instructions,  les  reflexions  qu  'elles  font  naitre  se  presentent  d  'elles- 
memes.  Je  me  bornerai  a  vous  faire  remarquer  que  le  President  par 
1 'importance  qu'il  attache  a  la  paix  avec  Alger,  par  les  demarches 
qu'il  prescrit  a  son  Envoye  pour  arriver  a  ce  but,  repond  aux  voeux 
des  Americains  qui  tous  desirent  naviguer  dans  la  Mediterrannee. 
Notre  interet  nous  permet-il,  Citoyen  Ministre,  de  leur  laisser  usurper 


85J  159 

un  Commerce  qui  par  notre  position  et  nos  aneiennes  liaisons  doit 
nous  appartenir  exclusivement  et  que  pour  la  properite"  de  la  Repu- 
blique  nous  devons  conserver.  Je  en  le  crois  pas,  Citoyen  Ministre, 
mais  je  me  contente  de  vous  presenter  seulement  cette  question  dont 
votre  sagesse  trouvera  la  solution  la  plus  avantageuse  a  notre  patrie. 

Salut  respectueux, 

Signe  P.  A.  ADET. 

APPENDIX  E. 

A   MAP,   WITH  ITS   CONSIDERATION  AND  EXPLANATION   RELATING  TO  CER 
TAIN  STIPULATIONS  IN  THE  TREATY  OF  1794. 

Consideration  of  the  Map.— An  exhaustive  search  authorizes  the 
statement  that  no  map  has  ever  been  made  which  considered  at  once 
the  location  of  the  British  forts,  the  disputed  boundary  lines,  and  the 
territory  held  by  the  British  in  1794.  From  sources  stated  in  the  bibli 
ography  enough  evidence  has  been  gained  to  supply  a  map  illustrating 
these  interests. 

Ten  forts  were  to  be  abandoned.  Fort  Recovery  was  mentioned  by 
Randolph,  Secretary  of  State,  in  a  letter127  to  John  Jay,  dated  August 
18,  1794.  It  is  also  mentioned  in  Stephens'  "Pictorial  History "  as 
built  by  General  Wayne  in  1793  near  the  scene  of  the  St.  Clair 
disaster. 

Great  Sodus  Fort  is  located  by  a  letter127  from  Randolph  to  the 
same  party,  dated  August  30,  1794. 

Fort  Miami,  on  the  rapids  of  the  Maumee  River,  was  also  men 
tioned  in  the  same. 

Randolph,  in  a  letter127  addressed  to  Jay  arid  dated  December  19, 
1794,  objects  that  Detroit  is  still  held  by  the  British  as  well  as  other 
forts  above  mentioned. 

President  Washington  in  his  address128  to  the  United  States  Senate 
and  House  of  Representatives  on  December  7,  1796,  mentions  three 
other  forts  which  have  been  evacuated — Oswego,  Niagara,  and  Michili- 
makinac,  or  Mackinac.129 

Fort  Oswegatichie  on  the  St.  Lawrence  River  and  Point-au-fer  and 
Dutchman's  Point  on  Lake  Champlain  are  mentioned  in  Jefferson's 
letter130  of  objections,  May  29,  1792,  to  Hammond,  the  British  consul. 

In  his  letter  to  the  same  party  on  December  15,  1791,  Jefferson 
mentions  Fort  Erie  as  one  of  those  to  be  abandoned,  but  in  his  letter 

127  State  Papers,  Foreign  Relations,  Vol.  I. 
!8  Richardson 's  "Message  and  Papers  of  the  Presidents." 

129  It  was  so  called  in  the  War  of  1812,  when  it  received  the  appel 
lation,  ' '  The  American  Gibraltar, ' '  as  one  of  the  strongest  positions  in 
the  United  States. 

130  State  Papers,  Foreign  Relations,  Vol.  I. 


160  [86 

of  May  29,  1792,  he  corrects  himself  in  that  Fort  Michilimaldnac  was 
the  one  intended.131  A  glance  at  the  map  shows  the  reason  for  this 
mistake  as  well  as  how  slight  Jefferson's  knowledge  of  the  forts  must 
have*  been  at  that  time.  Fort  Erie  was  a  British  fort  upon  British 
territory. 

The  boundary  question  is  much  easier  to  deal  with.  By  the  Treaty 
of  Peace  in  1783  it  was  stipulated  that  a  line  due  westward  from  the 
Lake  of  the  Woods  to  the  Mississippi  Eiver  should  constitute  the 
northwestern  boundary  line  of  the  United  States.  In  Jay's  letter130 
to  Lord  Grenville  on  the  4th  of  September,  1794,  he  objects  that  the 
northwestern  boundary  line  does  not  close,  as  the  Mississippi  does  not 
extend  far  enough  north  to  allow  a  line  "due  west"  from  the  Lake 
of  the  Woods  to  intersect  it.  The  Mississippi  River  had  not  been  ex 
plored  farther  than  the  forty-fifth  degree  of  latitude,  or  one  degree 
above  the  Falls  of  St.  Anthony,  so  a  commission  was  agreed  upon  for 
a  survey  to  ascertain  the  source  of  the  river.  Three  sources132  were 
conjectured:  Marshy  Lake,  near  the  forty-fifth  degree  of  latitude; 
White  Bear  Lake,  near  the  forty-sixth  degree;  and  Bed  Lake,  or  La- 
hontan  's  Mississippi,  near  the  forty-seventh  degree  of  latitude. 

Undoubtedly  there  was  either  a  mistake  in  regard  to  latitude, 
which  is  very  probable,  or  in  regard  to  the  names  of  the  lakes,  which 
might  easily  have  been  changed.  Eed  Lake  is  on  the  map  but  nearer 
the  forty-eighth  degree  than  the  forty-seventh  degree  of  latitude. 
There  is  a  White  Bear  Lake  about  the  forty-fifth  degree,  but  far  too 
small  to  be  noted  as  the  source  of  the  Mississippi,  and  also  has  the 
main  stream  of  the  Mississippi  running  by  it.  What  is  now  known  as 
Mille  Lacs  was  probably  then  called  Marshy  Lake  and  is  in  the  forty- 
sixth  degree  rather  than  the  forty-fifth  degree.  Lake  Winnibigoshish, 
forty-seventh  degree,  is  probably  the  one  then  designated  as  White 
Bear  Lake,  forty-sixth  degree.  The  reasons  for  these  assumptions  are 
location,  size,  and  the  tributary  in  the  case  of  Mille  Lacs,  and  the 
main  river  in  the  case  of  Lake  Winnibigoshish.  Eed  Lake  can  be 
accounted  for  only  in  size  and  possible  tributary  connection.  Big 
Stone  Lake,  where  Marshy  Lake  is  indicated  and  questioned,  is  the 
only  lake  near  the  forty-fifth  degree  of  latitude  which  has  any  large 
connection  with  the  Mississippi,  and  its  consideration  as  a  source  of 
the  Mississippi  by  the  surveyors  in  the  last  half  of  the  eighteenth 
century  is  very  doubtful  indeed.  It  must  be  remembered  that  the  in 
accuracies  of  the  maps  (Mitchell's)  which  Mr.  Jay  and  Lord  Gren 
ville  used  were  responsible  for  much  of  their  trouble,  and  the  territory 

131  Lyman  in  his  ' '  American  Diplomacy ' '  evidently  overlooked  this 
correction.    He  names  Erie  as  a  fort  to  be  abandoned,  omitting  Great 
Sodiis,  Miami,  and  Recovery. 

132  State  Papers,  Foreign  Eelations,  Vol.  I. 


87]  161 

over  which  they  negotiated  has  been  rendered  more  difficult  of  study 
by  the  civilization  and  progress  of  a  thrifty  country  for  one  hundred 
and  twelve  years. 

The  last  question  for  consideration  in  the  map  was  the  northeast 
boundary  line  of  the  United  States.  This  had  been  determined  upon 
in  the  Treaty  of  1783  as  the  St.  Croix  Eiver,  but  it  was  impossible  to 
determine  which  stream  was  really  the  St.  Croix.  A  commission  was 
provided  for  in  Jay's  treaty,  and  brought  in  its  report  on  the  25th 
of  October,  1798.  This  report  determined  that  the  river  previously 
known  as  the  Scoodiac,  or  Schoodiac,  was  the  St.  Croix  Kiver  intended 
in  the  Treaty  of  1783. 


162  [88 


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An  Estimation  of  the  Composite  Strength  of  Great  Britain  from 
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BIBLIOGRAPHY  FOR  THE  MAP. 


American  State  Papers,  Foreign  Relations,  Vol.  I. 

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133  -fr£T  Holcombe  is  one  of  those  obliging  public  citizens  to  whose 
knowledge,  local  enthusiasm,  and  patriotism  I  wish  to  make  full  ac 
knowledgment  for  the  only  authentic  information  regarding  Dutch 
man's  Point.  An  exhaustive  search  in  the  University  Library  and 
City  Library  of  San  Francisco  with  the  kind  assistance  given  there 
failed  to  reveal  any  information  concerning  the  fort  except  that  it  was 
on  Lake  Champlain.  Mr.  Holcombe  writes  in  part : 

' '  PLATTSBURGH,  N.  Y.,  Jan.  22,  1906. 
' '  Mr.  Robert  Rankin, 

DEAR  SIR: — In  reply  to  yours  of  the  8th,  would  say  that  I  am 
unable  to  locate  Dutchman's  Point  exactly,  but  I  think  it  where  there 
was  a  blockhouse  in  the  Eevolutionary  War  on  the  west  shore  of  North 
Hero  (North  Island).  Point-au-fer  is  where  I  have  marked  it  on  the 
map,  and  it  is  called  by  that  name  to-day.  Palmer's  History  of  Lake 
Champlain  refers  to  Point-au-fer  and  the  Blockhouse  as  being  the  two 
places  held  by  the  British  after  their  evacuation  of  the  country." 

On  the  map  sent  to  him  he  has  located  the  forts  as  in  the  small 
corner  map  of  this  essay.  He  writes : 

' '  Point-au-fer,  four  miles  south  of  the  Canadian  line. ' ' 

' '  Probable  location  of  Dutchman 's  Point  about  twelve  miles  south 
of  Canadian  line  on  the  west  shore  of  North  Hero  (or  North  Island)." 


